Intermunicipal Cooperation Between the

Town and Village of Ossining:

Legal, Financial and Operational Considerations

Prepared by the Edwin G. Michaelian Institute for Public Policy and Management of the

Dyson College

January 2009

 

TABLE OF CONTENTS

Page

I. Introduction and Study Team .............................................................................. 1

II. Study Methodology ............................................................................................. 2

III. Executive Summary ............................................................................................ 3

IV. Intermunicipal Cooperation - An Overview ............................................................10

A. Legal Framework ...............................................................................................10 B. General Financial Considerations .....................................................................14 C. Maximizing Benefits of Intergovernmental Cooperation ...................................17

V. Analysis of Intermunicipal Agreements .................................................................18

1. Street Lighting ..............................................................................................18 2. Fire Protection District ..................................................................................21 3. Village Sewers .............................................................................................27 4. Parker Bale Lift Station ................................................................................31 5. Water ............................................................................................................34 6. Comptroller and Treasurer Functions ..........................................................38 7. Town and Village Clerk Functions ...............................................................43 8. Recreation Functions ...................................................................................51 9. Veteran's Park ..............................................................................................56 10. Municipal Dumpsters ...................................................................................60 11. GO-TV ..........................................................................................................63

VI. Outline For Future Intermunicipal Agreements ......................................................66

VII. Additional Areas of Future Cooperation .................................................................67

VIII. Appendix A- Statutes Governing Cooperation .......................................................A-1

IX. Appendix B- Intermunicipal Agreements.................................................................A-8

INTRODUCTION AND STUDY TEAM

The Edwin G. Michaelian Institute for Public and Management of Dyson College, Pace University has undertaken a study for the Town and Village of Ossining, New York to analyze the history of intermunicipal cooperation between the municipalities. The primary purpose of the study was to assist the Town and Village in evaluating the viability of eleven (11) existing intermunicipal agreements by identifying legal, financial and operational issues arising out of the terms of those agreements. The study has three core analytic areas to it as follows: Legal Review and Analysis The legal component of the study entails review and analysis of the eleven (11) intermunicipal agreements for (1) consistency with the procedural requirements of the General Municipal Law and the substantive requirements of other applicable state statutes and local code provisions; and (2) clarity and legality in the division of responsibilities between the parties to those agreements. Financial Analysis The financial analysis component of the study entails review and analysis of the equity, rationality, suitability and comparability (to other similar municipal arrangements) of the cost allocation formulas set forth in the various agreements. Operational and Managerial Analysis The operational and managerial component of the study examines current operational areas covered by the existing eleven (11) intermunicipal agreements to determine whether such agreements actually reflect current practices between the Town and Village. Where relevant, comparisons to best practice operations are made. Areas for future cooperation between the Town and Village are identified.

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STUDY METHODOLOGY

Information for this study has been gathered from a variety of sources to obtain as much pertinent information and data as possible to conduct a comprehensive review and analysis. The primary sources are:

The eleven (11) existing intermunicipal agreements The respective budgets of the subject municipalities New York State Law and applicable local codes Interviews with relevant officers and department

heads with salient knowledge Pertinent official reports and records Observations from site visits Relevant academic and professional guidelines and

literature

The study team for this project consisted of: Brian J. Nickerson, Ph.D., J.D. M.P.A, an Associate Professor of Political Science & Public Administration and the Director of the Edwin G. Michaelian Institute for Public Policy and Management of the Dyson College of Arts & Sciences of Pace University.* Lester D. Steinman, J.D., Director of the Edwin G. Michaelian Municipal Law Resource Center of Pace University. Michael A. Genito, MBA, M.P.A., Adjunct Professor at Pace University and the Michaelian Institute for Public Policy and Management.**

Patty Dwyer, M.P.A., MS (Accounting), Adjunct Professor at Pace University.

* In August, 2008 Dr. Nickerson left Pace University to become Dean of Arts and Sciences at Iona College. **In January, 2009 Mr. Genito became the Director of the Edwin G. Michaelian Institute for Public Policy and Management.

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EXECUTIVE SUMMARY Legal

Eleven (11) Intermunicipal Agreements between the Town and Village of Ossining have been reviewed and analyzed in this report. Specific recommendations for each of the agreements as well as for all future IMA’s to be entered into by the Town and Village are included in this report. The Agreements cover the following substantive areas:

A. Street Lighting- The Village provides the personnel, equipment and materials necessary to maintain and repair the Town’s street lights.

B. Fire Protection District- The Village Fire Department furnishes fire protection services to the Town of Ossining Fire Protection District.

C. Sewers- The Village disposes of sewage originating in the unincorporated area of the Town.

D. Parker Bale Lift Station – The Town accepts sanitary sewage generated by the Mystic Point condominium development which is situated partially within both the Town outside and the Village and from certain other Village properties formerly connected to the Piping Rock Lift Station at the Town’s Parker Bale Lift Station.

E. Water - The Village supplies water to consumers in the Ossining Town-wide water district at a rate 50% greater than the Village resident rate.

F. Consolidation of Comptroller and Treasurer Functions – The Village Treasurer administers the Town’s financial, accounting, data processing and purchasing functions.

G. Consolidation of Town and Village Clerk Functions- The Town Clerk performs the duties of the Village Clerk.

H. Recreation Functions- The Village Superintendent of Parks and Recreation administers a combined recreation program for the Town and Village.

I. Veteran’s Park - The Town conducts and operates the recreation facilities and provides recreation services to Town and Village residents at the Village owned Veteran’s Park.

J. Municipal Dumpsters – The Town pays the Village for the provision of dumpsters, including the regular removal of refuse disposed of in the dumpsters.

K. GO-TV - GO-TV’s establishment and operation of a cable television station for public, educational and governmental access programming.

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Most of the IMA’s date back to the 1990’s, with some being older (Sewers) and a

few being more recent (Parker Bale Lift Station; Water). Due to changed circumstances, and the legal, financial and operational recommendations contain in this report, all of the agreements would benefit from renegotiation and redrafting. A template for drafting those future IMA’s is provided in the report.

Indeed, in certain instances, the original IMA has expired according to its terms (Street Lighting, Fire Protection, Sewers). While the existence of a written agreement is not an essential prerequisite for a valid IMA, renewal or extension of an IMA requires the same formality as approval of the original IMA, i.e. an act of the legislative body of each of the participants. Absent such independent legislative acts, the enforceability of these agreements could be called into question.

From a legal perspective, in many instances, the IMA’s lack sufficient detail

regarding the duties and responsibilities of the parties. For example: (1) The Street Lighting contract is silent as to the department, officers or employees in each municipality responsible for performing, supervising and or coordinating the performance of the street lighting maintenance. Nor are there provisions identifying the Village employee to be notified when requesting such services, requiring the timely completion of such services, detailing the manner of approving the performance of such services and providing for the auditing of the costs therefore. Any future agreement should state that in performing the duties of the agreement, Village employees at all times remain Village employees under the control of the Village and are not entitled to any compensation from the Town. Provisions also should be included requiring employees performing the services to be properly trained. Minimum insurance provisions required to be obtained by the Village should be set forth with the Town designated as an additional insured.

(2) The Fire Protection District agreement should include a map and/or an

appropriate metes and bounds or other detailed description of the Ossining Fire Protection District and the Primary and Secondary Fire Protection Areas within the District. Additionally, in drafting a new IMA for this service we recommend that consideration be given to memorializing the following duties and responsibilities of the Village and/or the Fire Department to:

Maintain and furnish suitably trained and qualified personnel and

appropriate equipment. Maintain workers’ compensation, general liability and property

insurance with appropriate minimum limits. Timely report claims for damage or injury.

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Indemnify the Town. Secure and pay for all necessary licenses and permits. Assume all liability for any loss, injury caused by or to its fire

apparatus sustained in answering any call. Assume responsibility for the payment of all claims for injury or

death of all persons, including fire department personnel, occurring in connection with services rendered under this agreement.

(3) The Sewer agreements should be revised to address the following matters: Identify locations of interconnections where one municipality

receives the other’s sewage flow.

Consider whether metering of these interconnections is financially feasible to more accurately measure sewage flow.

Each municipality should provide the other with a license over its

streets or properties as is necessary for the construction of duly approved interconnections.

Establish procedures for review and approval of additional

interconnections and compliance with applicable provisions of the Town and/or Village codes.

Designate the municipality that will monitor and inspect the

construction of the additional interconnection and be responsible for acceptance of the work.

Establish procedures for billing and payment of bills. Establish procedures for issuance of permits to connect into the

sewer system.

Compliance by each community with all applicable rules and regulations of the other municipality and County, State and Federal regulatory agencies with respect to sewage, pipes and facilities within its municipal boundaries.

(4) The Recreation Functions Agreement should include performance criteria, standards and a description of the components of the recreation program to be conducted and a representation that such program will be adequately supervised and that appropriate safety measures for program participants will be provided. The role, if

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any, for either the Town or Village or joint Town/Village Recreation Commission should be addressed. The facilities of the Town and Village to be used for the recreation program should be specified as well as who will be responsible for maintaining and repairing those facilities and at whose cost. (5) The GO-TV agreement should include references to the policies that will govern GO-TV’s operation including, but not limited to, public access to facilities, equipment, training, channel space and program content and scheduling. Reference should also be made to the role to be played by the Town’s Cable TV advisory committee which was established to serve as advisory body for the public, educational and municipal access channels of cable television.

Financial

Intermunicipal agreements (IMA) should achieve several financial goals, including but not limited to lower costs and the allocation of fair costs to each party in the agreement. IMAs range from those involving the basic sharing of resources to mergers, annexation or the complete transfer of services. Costs associated with IMAs should be calculated appropriately and include both direct and indirect costs, and the financial component of an IMA should indicate the cost concept used. Data sources must be relevant and timely, and the IMA should be reviewed at least annually and whenever there are changes in law, policy, or practice that would significantly impact the provisions of the IMA.

The various (11 in total) IMAs involved in this study were developed several years ago and should be updated. The Maintenance and Repair of Street Lights IMA does not involve large sums of money, but could be improved with a more detailed description of how labor costs are calculated and the use of an hourly equipment rate rather than mileage for equipment costs. The Town of Ossining Fire Protection District IMA appears to underfund the Village for the cost of operations, especially when considering the fact that 35% of the amount collected must be remitted to the volunteer fire department. Other improvements to this IMA would include a provision for pricing adjustments at year end, the inclusion of debt principal in the cost structure, and the appropriate formulae for the allocation of insurance costs.

The Sanitary Sewer agreement uses an appropriate measure (metered water) to determine billing for the sewer service provided, but could be refined by using a winter month usage as opposed to year-round usage, to more properly reflect actual amounts of wastewater treated. Consideration should be given to a more detailed study that would determine if the charges to consumers reflect a full recovery of costs. Sewer operations are currently accounted for in a “special revenue” fund. This should be reviewed to determine if the use of an enterprise fund would be more appropriate. The Parker Bale Lift Station agreement has several deficiencies that require correction to clarify the basis and formula used to calculate costs and charges for this service. Consideration should also be given to ensuring that this agreement does not conflict

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with the terms and conditions of the Sanitary Sewer agreement, and the opportunity to incorporate the Parker Bale Lift Station agreement into the Sanitary Sewer agreement. The Water agreement uses an appropriate charge for customers outside of the Village (50% more than Village users). However, a water rate study should be performed to ensure that the rates for customers, both Village and otherwise, are appropriate, and the Village should consider accounting for the activities of the Water Fund in an enterprise fund rather than a special revenue fund.

The Comptroller and Treasurer Functions IMA requires extensive rewrite to reflect not only an update on costs, but as well to include full costs (all direct costs and indirect costs). The allocation of costs should likewise be reviewed, and the detailed description of services to be performed should be concise enough but as well broad enough to allow for a full understanding of what services are being provided with enough flexibility to provide for changes in law, technology, practice, or operations. Similarly, the Town and Village Clerk Functions IMA could be improved by eliminating the detailed enumeration of duties and replace same with a more general reference to various laws concerning the responsibilities and duties of town and village clerks.

The Recreation Functions IMA should be updated to reflect the allocation of costs and what, if any, items included in an inventory at the inception of the agreement would require replacement upon termination of the agreement. The Veteran’s Park Agreement should establish the basis for the allocation of shared costs. Consideration should be given to incorporating the Veteran’s Park Agreement into the Recreation Functions IMA to eliminate conflicting terms and conditions between the agreements.

The Municipal Dumpster agreement appears to provide for an appropriate charge, even though the agreement itself does not appear to provide for certain direct and indirect costs such as employee benefits, insurance, and debt service.

The GO-TV agreement is an IMA only in the sense that it establishes that two municipalities (Village and Town) agree to remit to a third party (GO-TV) some or all of the cable franchise fees collected in return for the operations of government cable television broadcasting. The municipalities should entertain a study to determine whether or not GO-TV has complied with the terms and conditions of the agreement, and obtain a current inventory of equipment funded under the agreement. The municipalities should also consider incorporating the agreement into the “Cable TV IMA” (an IMA beyond the scope of this study), which is an agreement among the Town, Village, and School District.

Operational

Various Town and Village officials are administering all but one of the intermunicipal agreements (IMAs) examined under this study. A source of confusion and frustration among those responsible for implementing the IMAs can be attributed to a lack of an historical perspective necessary to gain an understanding of the legislative and/or administrative history of the eleven (11) intermunicipal agreements. Despite the

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lack of a clear unanimity of purpose and the passage of time, there has been a successful and concerted effort to institutionalize the IMAs to bring about the desired service efficiencies. Therefore it is recommended that all of the IMAs (with the exception of GO-TV) be renewed.

Collectively, the IMAs should be rewritten with clear preambles that identify the purpose, intent and scope of the IMA. Where applicable, responsible parties should be identified, and insurance and related indemnity provisions renewed. A tickler system should be established to periodically audit and update required insurance provisions.

The agreements that involve shared human resources (Comptroller, Clerk, Recreation and Fire Services IMAs) should be rewritten and modernized first, since they are administratively essential to both municipalities.

Services and functions under the Comptroller and Clerk IMAs would be best illustrated by referencing the duties of these public officers cited in Town Law and Village Law. The Treasurer and Clerk should be consulted and relied upon to assist in preparing the IMAs. There are discrepancies among some of the obligations that are stated in the IMAs and the actual services provided. For example, there has been considerable expansion of IT services provided by the Village that are not required under the Finance IMA.

The Recreation IMA presents opportunities to share and expand both recreation and parks services. A more integral role for a joint Parks and Recreation Advisory Board or Recreation Commission should be explored. There are informal arrangements occurring that should be formalized through an expanded IMA. There are also opportunities to comprehensively plan for facilities upgrades and park maintenance standards when revisiting the Veteran’s Park agreement.

The Fire Protection agreement must redefine the service area and set forth the means and methods of deployment. Operational and financial audits should be conducted and the municipalities should explore alternative models for fire services provision.

It is recommended that the agreements that involve shared services and/or shared infrastructure include maintenance standards, remedies for service interruptions, and cancellation provisions.

The Sewer use agreement needs to identify the cost drivers attributed to the excess sewage flowing from interconnections with the Town. Also, a list of all Town districts served by the Village under this IMA should be appended to the IMA. The Town should verify that none of the sewage it conveys is generated from other municipalities.

The Water IMA is silent on a number of important issues: Water quality, the authority to resell NYC water to outside customers, sampling techniques and maintenance standards. There is a premium mark-up on water used by the Town for its

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municipal operations (parks and other uses) that should be addressed. There are also taxes paid by the Village for its water facilities and related infrastructure that extends within the Town outside. The parties should consider whether any of these charges could be reduced or credited in a manner that would benefit the water fund budget and therefore all customers.

The GO-TV agreement was reportedly defunct by the onset of this study. If the parties desire to partner with GO-TV in the future, it is recommended that subsequent agreements and service engagements be limited to the production and airing of government programming on designated channels. The agreement should establish a rate per meeting or per hour for personal services and studio use.

Throughout the report, new areas for future cooperation have been identified.

These areas are recommended based upon the analyses of the existing IMAs (IT Master Plan, Parks & Recreation Master Plan; Joint Recreation Commission; Joint Fire District) as well as based upon the successful experiences of other communities (Purchasing; Investment Pools; Justice Court; Building and Code enforcement activities).

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INTERMUNICIPAL COOPERATION – AN OVERVIEW

A. Legal Framework

1. Constitutional and Statutory Delegations of Authority1

Municipalities in New York State enjoy broad authority to enter into cooperative

intergovernmental agreements. General Municipal Law Article 5-G. Pursuant to Article IX, § 1(c) of the New York State Constitution, the Legislature has empowered municipal corporations,2 and certain county and town districts “to enter into agreements for the performance among themselves or one for the other of their respective functions, powers and duties on a cooperative or contract basis or for the provision of a joint service or a joint water, sewage or drainage project.” General Municipal Law § 119-o. A joint service is broadly defined to mean “joint provision of any municipal facility, service, activity, project or undertaking or the joint performance or exercise of any function or power which each of the municipal corporations or districts has the power by any other general or special law to provide, perform or exercise, separately.” General Municipal Law § 119-n(c). Thus, an essential prerequisite to the exercise of the powers conferred by the Constitution and General Municipal Law is that each participating municipality must possess the power to do the act or perform the service individually. General Municipal Section 119-n(c) provides for the extension of appropriate territorial jurisdiction to effectuate such agreements.

Provision is also made for cities, towns and villages, among other entities, to

provide for a common water supply (GML Article 5-B), to develop an excess water supply to sell to other municipal corporations (GML Article 5-C), to construct and develop excess sewage and drainage facilities (GML Articles 5-D, and 5-E),and to incur indebtedness therefore, for the purpose of agreeing to convey and dispose of sewage and storm waters and other surface and sub-surface waters collected by another public corporation or improvement district. Alternatively, two or more municipalities may enter into agreements to provide for common drainage facilities, including joint

                                                            1 This overview is limited to the general enabling statutes for intergovernmental cooperation and does not address the myriad provisions throughout New York State law authorizing municipal cooperation for particular functions and activities. Where a particular function or service to be shared is subject to both the general enabling provisions of Article 5-G and another more specific statutory grant of authority, reference to both sections is required and compliance with additional conditions or prerequisites may be necessary. A table of these individual provisions, excerpted from “Intermunicipal Cooperation and Consolidation” published by the New York State Comptroller’s Office, is attached as Appendix A. 2 Municipal Corporation is defined as a county outside New York City, a city, town or village, fire district, school district or board of cooperative education services. General Municipal Law § 119-n (a).

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acquisition, construction, operation and maintenance. General Municipal Law Article 5-F. The acquisition and development of such facilities may involve the participating municipalities acting jointly or through one of the contracting municipalities acting for all of the participating municipalities. General Municipal Law § 119-h. Such joint contracts shall include provisions for the “acquisition and construction of the common facilities; the management and operation of the system; the method of fixing the proportionate share of each participating municipality and all other matters necessary to effectuate such an arrangement.” General Municipal Law § 119-g.

Article VIII, § 1 of the New York State Constitution creates an exception from the

general constitutional prohibition on the gift or loan of credit by permitting “two or more [local government] units [to] join together pursuant to law in providing [and financing] any municipal facility, service, activity or undertaking which each of such units has the power to provide separately.” Each such local government unit, as authorized by the Legislature and subject to constitutional tax and debt limits, may “contract joint or several indebtedness, pledge its or their faith and credit for the payment of such indebtedness for such joint undertaking and levy real estate or other authorized taxes or impose charges therefore” to finance such joint projects. The Legislature is further empowered to regulate the amount of such indebtedness, the manner in which it is incurred and the method for allocation and apportionment of such indebtedness among joint project participants. Under Local Finance Law § 15.10(c), joint indebtedness may be apportioned and allocated on the basis of “a ratio of full valuations of real property or on a basis of the amount of services rendered or to be rendered, or benefits received or conferred or to be received or conferred, or on any other equitable basis.”

Pursuant to General Municipal Law §119-o, an intermunicipal agreement (“IMA”) may contain provisions relating to:

Equitable allocation of revenues and costs based upon full valuation of real property, the amount of services rendered, benefits received or conferred, “or on any other equitable basis, including the levying of taxes and assessments to pay such costs on the entire area of the corporation or district, or on a part thereof, which is benefited or which receives the service”

Employment of personnel Responsibility for the establishment, maintenance and operation of the

joint service or joint water, sewage or drainage project and the fixing and collecting of charges, rates, rents or fees

Purchasing and making contracts Acquisition, ownership, custody and maintenance of property Obtaining federal and state aid and accepting gifts

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Designation of a fiscal officer of one of the participants to have custody of monies and payment authorization in connection with the expenditures for a joint service or a joint water, sewer or drainage project

Responsibility for liabilities arising out of the operation of the joint

service or joint water, sewer or drainage project and insuring against same

Procedures for periodic review of the terms and conditions of the

intermunicipal agreement, including terms relating to its duration, extension or termination

Adjudication of disputes Addition to or withdrawal from participation Other matters as reasonably necessary to effectuate and carry out the

joint service or a joint water, sewage or drainage project

IMA’s must be approved by a majority vote of the governing body of each participant. General Municipal Law §119-o. Where the authority of any participant to perform any function, service, activity or project, or to finance same, is subject to a public hearing, referendum, consent by other governmental entities or other requirement applicable to the making of contracts, compliance with such prerequisites are required to participate in an IMA.

The duration of an IMA, unless otherwise provided by law,3 may extend up to a

period of five (5) years. Such agreements may be reviewed at the end of their terms or amended or cancelled prior thereto. Where the performance of the agreement involves issuance of indebtedness by the participants, either jointly or severally, the term of the agreement may extend up to a maximum period of time equal to the period of probable usefulness established by § 11.00 of the Local Finance Law for the object or purpose for which the indebtedness was issued. General Municipal Law § 119-o (2) (j).

Additional authority to enter into intermunicipal agreements for the purpose of cooperatively undertaking comprehensive planning and land use regulation is set forth in Town Law § 284, Village Law § 7-741 and General City Law § 20-g. By the enactment of those sections, the Legislature sought:

“to promote intergovernmental cooperation that could result in increased coordination and effectiveness of comprehensive planning and land use regulation, more

                                                            3 See e.g. General Municipal Law §§ 119-a and 119-d (contracts for sewage disposal and drainage, up to 40 years).

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efficient use of infrastructure and municipal revenues, as well as the enhanced protection of community resources, especially where such resources span municipal boundaries.”

Under those statutes, cities, towns and villages may enter into agreements with

each other to, among other things:

“create a consolidated planning board which may replace individual planning boards. . .

create a consolidated zoning board of appeals which may

replace individual zoning boards of appeals . . .

create a comprehensive plan and/or land use regulations which may be adopted independently by each participating municipality

provide for a land use administration and enforcement program which may replace individual land use administration and enforcement programs . . .

create an intermunicipal overlay district for the purpose of

protecting, enhancing or developing community resources that encompass two or more municipalities.”

Town Law § 284(4); Village Law § 7-741(4); General City Law § 20-g (4).

Joint agreements under these sections may contain such provisions as deemed appropriate by the parties, including provisions relating to the items delineated in General Municipal Law § 119-o as previously discussed. Local laws may be amended, as appropriate, to incorporate the provisions contained in such joint agreements. 2. Intergovernmental Relations Councils

As an inducement to intermunicipal cooperation, Section 239-n of the General

Municipal Law authorizes any number of municipalities to create an Intergovernmental Relations Council (“IRC”) to “strengthen local governments and to promote efficient and economical provision of local governmental services within or by such participating municipalities.” An IRC is empowered to conduct surveys, studies and research programs and to disseminate the results to aid in the solution of local government problems; consult and cooperate with state, municipal and public or private agencies in matters affecting local government; to devise and recommend practical ways and means to promote greater economy and efficiency in the planning and delivery of municipal services; to provide a forum for local governments to explore and develop areas for intermunicipal cooperation; to operate as a purchasing consortium for the

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purpose of obtaining economies through joint bidding and purchasing; and to purchase and make available to participants goods and equipment.

Members of the IRC shall elect officers and adopt bylaws to govern its operation. The governing body of each participant is authorized to raise by taxation and include in its budget sums necessary to meet all or part of the expenses of establishing and maintaining the IRC. B. General Financial Considerations

Intermunicipal agreements should achieve the following financial goals:4

Allocation of fair costs to each municipality Lower cost to each municipality than if provided independently Sharing of total costs (direct, indirect, general and administrative) Prompt payment of amounts due to/from each municipality Avoid dependence on grants or aid

Shared services arrangements can best be understood when placed on a continuum

that would reflect the following:5

Minimum Integration, at the far left of the continuum, includes very basic sharing of information, equipment, coordination of efforts, and joint promotion.

Moving upward in integration, the next phase is mutual aid,

contracting with another government for service, sharing facilities, joint ownership, and consortiums or pools (investment pools, insurance consortiums, etc.)

The next category upward in integration includes merged

departments, special districts, shared contracts with private firms, and regional planning.

At the top of the integration continuum we find mergers, annexation,

and/or the complete transfer of service provision.

As integration increases, so does the change to the service architecture, the political support and administrative trust required, and the return on community investment potential.

                                                            4  Office of the New York State Comptroller, Division of Local Government Services and Economic Development. “Intermunicipal Cooperation”, Chapter 15 of the Local Government Management Guide (Albany, New York: Office of the New York State Comptroller, 2003.), 6-7. 

5 Ruggini, John, Intergovernmental Service Sharing (Chicago: Government Finance Officers Association of the United States and Canada, 2007.), 6.

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As with any other service, a service provided or shared through an IMA should

have the cost of the service properly calculated, and if applicable, properly allocated to each municipality. The term “cost accounting” defines the procedures used for rationally classifying, recording, and allocating current or predicted costs that relate to a certain product or production process.6 “Activity-based costing” (ABC) is a cost accounting method that estimates the total cost of a service or product, including the direct costs of labor and materials and the indirect costs of support activities.7 “Cost analysis” is the process of defining a service and establishing the cost of providing the service based on total cost, marginal cost, variable cost, or any other relevant cost element.8 Some of the more common terms used in cost accounting are defined as follows:9

Direct cost – a cost that can be assigned specifically to a particular product or service (e.g.: salaries and benefits of employees providing a service).

Indirect cost – a cost necessary for the functioning of the organization

as a whole, but which cannot be directly assigned to one service (e.g.: gas and electric utilities costs for an office building).

Total (or full) cost – the sum of all costs, direct and indirect, associated

with a particular product or service. Fixed cost – a cost that does not change with increases or decreases

in the amount of product or service produced or provided (e.g.: rent). Variable cost – a cost that increases or decreases with increases or

decreases in the amount of product or service produced or provided (e.g.: fuel).

Sunk cost – a cost that has already been incurred (e.g.: purchase

equipment several years ago). Marginal cost – the increase in total cost associated with the

production or provision of one more unit of product or service (e.g.: the additional cost to make one more stop on a garbage route).

                                                            6 New York State Society of Certified Public Accountants, “Accounting Terminology Guide,” http://www.nysscpa.org/prof_library/guide.htm#C (accessed March 15, 2008). 7 Michel, R. Gregory. Cost Analysis and Activity-Based Costing for Government. (Chicago, Illinois: Government Finance Officers Association of the United States and Canada, 2004), 137. 8 Kelley, Joseph T. Costing Government Services: A Guide to Decision Making (Chicago, Illinois: Government Finance Officers Association of the United States and Canada, 1993), 30. 9 Kelley, Joseph T. Costing Government Services: A Guide to Decision Making (Chicago, Illinois: Government Finance Officers Association of the United States and Canada, 1993), 29.

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Life-cycle cost – the total of all costs associated with ownership of an asset (building, vehicle, equipment, etc.) over its lifetime (the costs of acquisition, operation, and maintenance less any resale value).

Unit cost – the cost to produce one unit of product or service. Opportunity cost – the value of the benefit that would have been

received if an alternative course of action had been taken.

The financial component of an IMA should indicate what cost concept (total cost, marginal cost, unit cost, etc.) was selected as the basis for calculating costs and an explanation of the calculation to be used and sources used to obtain the data being entered into the calculation. Preferably, the IMA would include a sample calculation with references to data sources. Definitions of the data sources should be developed carefully so as to eliminate confusion in preparing the calculation each year or whenever required. For instance, the term “assessed valuation” may refer to “total assessed valuation” or it may refer to “taxable assessed valuation”. Likewise, IMA’s attempting to provide protection from inflationary costs will include a reference to “the CPI” without being specific as to which CPI is the intended index. The data used in a calculation should come from sources and published documents such as adopted budgets, audited annual financial reports, or information readily available from trusted sources such as the Bureau of Labor Statistics, New York State Office of State Comptroller, etc.

The data source should be relevant, timely, and accurate, which in terms of IMA’s may or may not be easily achieved. For instance, in calculating the cost for a particular service in the forthcoming year so that the other party to the IMA can better prepare an annual budget, should one use numbers from 1) the forthcoming year’s budget (which are planned, not actual, expenditures), 2) the prior year’s audited financial statements (which in the forthcoming year will be two years old), 3) an estimate based on historical and/or current year costs (which is subject to the skills of the estimator, the methodology and sources of data, and a wide variety of other possible variations).

As with any document that results in a financial transaction at some point in time, the IMA should include specific information as to billing, payment, and the actions available for late or non-payment. The IMA, and especially the financial component of the IMA, should be reviewed annually. This review should not only determine that the intent and provisions of the IMA are being followed, but as well to ascertain what, if any, changes should be made to the agreement. Laws, accounting rules, technology, and “best practices” are just some of the items that can change significantly from year to year, turning what was once high-value IMA into one of low-value, or worse, an economic burden to one or more of the parties to the IMA.

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C. Maximizing Benefits Of Intergovernmental Cooperation

Officials and employees of the Town of Ossining and Village of Ossining are fundamentally concerned with providing municipal services at an economical, efficient and effective scale. All know and agree that a resident taxpayer is rarely concerned about the source of services if they are provided in an economical, efficient and effective manner. In furtherance of their stated goals, the Ossinings have executed and implemented a variety of cooperative, intermunicipal agreements (“IMAs”). Eleven IMAs were examined to determine if the specific services agreed upon under these contracts were in fact being performed in a manner that met the mutual expectations of the Town and Village.

1. Understanding The Nature of the Agreement

Cooperation agreements are typically divided into two categories: Joint agreements and service agreements. A “joint agreement” is used when the participating governments agree to share in the performance of a function or the construction and operation of a facility. It usually provides for significant participation by each municipality. There is generally a “rough equality” among the participants with regard to resources and facilities, so that the potential contribution of each is similar. NYSBA Government Law and Policy Journal, Winter 2007, Vol. 9, No.2.

Of the eleven IMAs examined, only the tri-party agreement entitled “Agreement Between the Village of Ossining, the Town of Ossining, and Greater Ossining Television, Inc. Regarding the Establishment and Operation of a Cable Television Studio and the Operation of Public Channels” resembles a joint agreement. All other IMAs examined are “service agreements,” wherein and whereby one municipality contracts with another to provide a service at a stated price. Service agreements are appropriate when the participants are substantially different in size or capability, or when a readily definable commodity – such as water, sewer, sanitation or street light maintenance – is provided. Id.

In the course of interviewing employees and officials, it became evident that there was considerable confusion over the nature, intent and the scope of many of the service agreement IMAs, particularly those that involved the provision of human resources (the Clerk, Treasurer, and Recreation agreements). Consequently both municipalities have experienced internal and external pressures that ultimately led to this independent study. When diagnosed, these pressures were found to originate in part from a lack of recognition and/or acceptance that the majority of IMA agreements were simply service agreements, and that it was not the intent of either party to divest itself of any interest in oversight or management of the services to be performed. In most instances, there were concerted efforts to allocate the cost of services on some proportionate basis (based on assessed valuation, use, percent of population, or other agreed upon means) that was recognized by the parties as fundamentally fair and politically defensible. There were necessary compromises and concessions that, if not

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2. Preserving and Enhancing Partnerships

From inception to date, there have been disagreements when interpreting, implementing, and administering many of the provisions of the IMAs. Perceptions of what was "lost" and what was "gained" by one municipality over another were shared by many of the employees responsible for delivering services. Functions and expectations have “evolved” but the IMAs remained static. Representatives of both the Town and Village expressed confusion and disagreement over the scope of work, the intent of the parties, and the allocation of costs.

Municipal officials were in agreement that, despite the need to modernize and amend the IMAs to address open issues, the cooperative agreements have resulted in efficient and effective service delivery for their respective and mutual constituents. As long as the Town and Village agree to keep the focus on cost sharing and the resultant savings, these partnerships will continue to be construed as “win/win” situations for both participating municipalities. The willingness to compromise and forge partnerships needs to be reinforced by succeeding elected officials and employees and embraced by those who are responsible for performing and providing the services.

Analysis of Intermunicipal Agreements

As part of this study, the Town and Village of Ossining have provided eleven (11) Intermunicipal Agreements between them for our review and analysis. Each of those agreements is discussed below with specific recommendations for each as well as for all future IMA’s to be entered into by the Town and Village. 1. Street Lighting

Legal

This agreement provides for the Village to provide the personnel, equipment and

materials necessary to maintain and repair the Town’s street lights. The Town agrees to reimburse the Village for the actual cost for providing this service. Reimbursement is to be made through quarterly payments to the Village based upon a labor hourly rate in effect in 1992. The Town also will pay for fringe benefits at 45% of the labor cost, vehicle use at thirty-five cents per mile, and materials used at cost.

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The Town Police notifies the Village of any lights that need repair. The Town agrees to indemnify the Village and its employees from claims arising out of the performance of this contract.

The agreement was entered into in 1992 for a term of one (1) year, ending

December 31, 1992. No provision for extension or renewal is included in the contract and no written evidence of any such extension or renewal has been provided.

By its terms, therefore, this contract expired on December 31, 1992. While the

existence of a written agreement is not an essential prerequisite for a valid IMA, renewal or extension of an IMA requires the same formality as approval of the original IMA, i.e. an act of the legislative body of each of the participants. Absent such independent legislative acts, the enforceability of this agreement, and other similarly situated agreements between the Town and the Village discussed hereafter, would be called into question.

The 1992 contract is silent as to the department, officers or employees in each

municipality responsible for performing, supervising and or coordinating the performance of the street lighting maintenance. Nor are there provisions identifying the Village employee to be notified when requesting such services, requiring the timely completion of such services, detailing the manner of approving the performance of such services and providing for the auditing of the costs therefore. These matters should be addressed in any future agreement. Similarly, any future agreement should state that in performing the duties of the agreement, Village employees at all times remain Village employees under the control of the Village and are not entitled to any compensation from the Town. Provisions also should be included requiring employees performing the services to be properly trained. Minimum insurance provisions required to be obtained by the Village should be set forth with the Town designated as an additional insured.

Financial

The annual amounts (approximately $5,000)10 paid for services under this agreement are not material in dollar amount to the budgets of either the Village or the Town, but it is important that the costing methodology and payment process is fair and appropriate. For example, Paragraph 3 of the agreement concerning “quarterly” payment should be rephrased, preferably with a given date (“April 1”, “July 1”, etc.) or at least specifying the three-month periods intended. There should also be language concerning whether or not late payment penalties are incurred, and if so, the penalties and how they are calculated. Unit (hourly) cost calculations normally include general and administrative indirect costs, but since the annual amounts paid and received are immaterial the cost of calculating them would most likely outweigh the benefit of including them.

The labor rate should indicate “at the actual amounts paid to the employees of the Village performing the service” and should specify what constitutes the hours to be                                                             10 “General Fund Revenue – 2263 Street Lighting”, Village of Ossining 2008 Adopted Budget, 2.

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paid. For instance, is the time spent on a call calculated from dispatch to return, or only for time spent on the work site? What hourly increments are used (half-hour, quarter-hour, tenth of an hour, nearest minute)? Are there, or is there the potential for, a required minimum call time, such as a union employee being paid a four-hour minimum for call-out on a weeknight, weekend, or holiday? Agreement language to the effect that the Town would be charged for actual amounts paid by the Village for labor eliminates any issues related to different rates paid to different employees, different rates paid for overtime vs. straight time, different rates paid for call-out or other special provisions, etc.

Fringe benefits should be recalculated at least annually and whenever there is a significant change in the benefits afforded and the rates of such benefits, and should include all benefits provided to employees assigned to tasks covered under the agreement. The agreement provides a flat rate equal to 45% of labor cost. A quick review of current (2008) rates indicates that this is probably understated: FICA 7.65%; state retirement 8.5%; medical 27.69%11, and workers compensation (class code 7538) 10.44%12 total closer to 54% of salaries. One benefit that should be reviewed annually but not necessarily included in the calculation is the cost of unemployment insurance. Currently that amount is immaterial (approximately $6,500 in 2008).

It is unclear why a mileage, rather than an hourly, equipment rate was selected. It

is equally unclear as to how it was determined that thirty-five cents per mile was an appropriate rate. It is recommended that the vehicle/equipment component of the unit cost be calculated using the rates as published in the Federal Schedule of Equipment Rates13 in effect at the time the work is performed. Using the federal rates has many advantages. The federal rates are designed to incorporate, on average, the total life-cycle costs associated with a given vehicle or piece of equipment, thereby eliminating the need for the Village to perform such calculations. The federal rates are published and readily available, eliminating controversy as to what rate should be used. Using the federal rates will facilitate reimbursement from FEMA or other federal agencies for work performed in a federally declared emergency.

Using the actual cost for materials is appropriate, but the Village should ensure that “cost” is total cost to bring the materials into service. Again, the annual amounts generated by this agreement are immaterial, but it would be worthwhile to “walk through” from requisition to delivery the costs incurred in the procurement of street lighting supplies. For instance, in addition to the cost of the part (including any related shipping costs), there are salary and benefit costs associated with the employee(s) creating, approving, and processing the requisition and/or purchase order, those receiving and storing the part, and those paying the invoice. There are costs associated with materials and supplies used in this process (paper, copying, etc.) as well as administrative (supervision) and facility (building, telephone, etc.) overhead costs.

                                                            11 Calculated by dividing total medical benefits by total salaries, as found on pages 69 and 161 of the Village of Ossining Adopted 2008 Budget. 12 New York Compensation Insurance Rating Board, “New York Manual Rates Effective 10/1/2007”, http://www.nycirb.org/ (accessed March 7, 2008). 13 See http://www.fema.gov/government/grant/pa/eqrates.shtm (accessed March 3, 2008).

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Performing a walk-through can often reveal that cost reductions and efficiencies can be gained if certain processes are eliminated or modified.

Operational

The agreement between the Town and Village has been ongoing despite the

expiration of the original service contract. Adjustments have been made annually to reflect the current cost of labor and fringes. There are two employees budgeted in the Village’s budget for street light maintenance. However, under current billing there is no longer any calculation made for mileage charges. Materials are billed at per unit costs.

It was evident that the Ossining Town Police send reports of street light outages occurring in the Town to the Village’s Department of Public Works. Calls are also received during office hours from residents. Village DPW clerical staff refer the report to the appropriate field personnel and a work order process follows. The Village employee notes the date of service, time spent and outcome of the service call. This information is given to DPW clerical and is attached to a quarterly invoice submitted to the Town for payment.

Timely performance under this agreement is essential for roadway safety, crime prevention and deterrence. Accordingly there should be a reasonable expectation that the Village will prioritize street light outage repairs. The parties to the IMA should make a statement in this regard. This would also entail language to permit either party to engage a third party to perform these services should the Village be unable to respond or repair the fixtures.

The agreement should state where the reports or calls should be directed and to who’s attention. The current practice seems to work fine: A street light outage report is generated by the Town Police and faxed to the Village’s Department of Public Works.

On occasion there are problems with the energy source, not the lamp or fixture, and Con Edison must be called for repairs. The agreement does not address such instances and it should identify who is responsible for contacting Con Edison when they occur. It follows that the agreement is silent as to whether the Town would be charged a “service call” should the Village’s employee be unable to repair the light. There should also be a provision though which the Town or Village can engage a third party to perform if the Village is unable to. 2. Fire Protection District

Legal This agreement provides for the Village Fire Department to furnish fire protection

services to the Town of Ossining Fire Protection District. The agreement was entered into in 1991 for a one (1) year period terminating December 31, 1991. No provision for extension or renewal is included within that agreement. Neither the Town nor the Village

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has provided us with any written documentation to indicate that such agreement has been renewed with the requisite formalities previously discussed. The consent of the Village Fire Department, and/or Fire Company or companies providing such service, to any such extension or renewal would also be required.

The agreement provides for the Town to pay the Village the sum of $161,907 in

1991. The funds to be paid are a charge against the District property owners to be assessed, levied and collected with Town taxes. The sum of $56,667 is to be paid by the Village to the Village Volunteer Fire Department pursuant to Section 209-d of the General Municipal Law.

Any future IMA’s should include a map and/or an appropriate metes and bounds

or other detailed description of the Ossining Fire Protection District. Similarly, the description of Primary and Secondary14 Fire Protection Areas within the District, referred to in paragraph 2 of the agreement, should be included.

Paragraph 1 of the agreement describes the obligation of the Village Fire

Department to respond to fires occurring in the District “when notified by alarm or telephone or from any person within the district of a fire therein.” Whether a person calling in the fire alarm is in the District at the time of the call should be irrelevant to the response obligation.

Paragraph 6 referring to the rights, privileges and immunities of the members of

the Village’s fire department while acting under the IMA is partially excerpted from General Municipal §209. That statute refers to mutual aid obligations and may not be applicable to this agreement. See 1982 Op. St. Comp. 276. Absent a different statutory predicate or another authority, it is also unclear that, by contract, the parties can confer such additional powers on the Village Fire Department members.

Another question arises regarding the proper signatory on behalf of the Village

Fire Department for granting consent to such an agreement. According to the State Comptroller, “in a village the volunteer fire company (not the fire chief of the village fire department), must express its consent to the contract”. 1990 Op. St. Comp. 20. The procedure to be followed by the fire company granting its consent is an internal matter which would be generally governed by the company’s bylaws. Id.

Generally, in drafting a new IMA for this service we recommend that

consideration be given to memorializing the following duties and responsibilities: The Village and the Fire Department agree to maintain and furnish

suitable personnel and equipment to render adequate fire protection within the boundaries of the District.

                                                            14 Reference is made in the agreement to another IMA between the Town of Ossining and the Village of Briarcliff Manor pursuant to which Briarcliff Manor is primarily responsible for providing fire services in the Secondary Fire Protection Area. Analysis of that agreement, which has not been submitted, is beyond the scope of this study.

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The Village agrees to maintain workers’ compensation; general

liability and property insurance with appropriate minimum limits. Proof of compliance with these insurances and amounts should be provided to the Town and the Town should be named as an additional insured on such policies.

Claims for damage or injury shall be reported to the Town Attorney

and Town finance officer (Village Treasurer) as soon as possible but not later than 24 hours from the time of such accident or such claim followed by a detailed report within 3 days thereafter.

Indemnification by the Village and Village Fire Department to the

Town. The Village and Fire Department agree to secure and pay for all

licenses and permits necessary to perform and render the services herein.

Representations by the Village and the Fire Department as follows:

The Fire Department is qualified to perform the services outlined here. The Fire Department agrees to participate in the New York State Fire Incident Reporting System and further agrees to forward one copy of each and every report regarding a fire occurrence within the District to the Fire Marshall or other designated Town Official.

The Fire Department agrees to ensure that all members performing fire protection services are adequately trained and qualified as determined by completion of a national, New York State or equivalent fire training program and receive any periodic refresher training that may be required.

The Village and Fire Department agree to assume all liability for any loss, injury caused by or to its fire apparatus sustained in answering any call.

The Village and Fire Department agree to assume responsibility for the payment of all claims for injury or death of all persons, including fire department personnel, occurring in connection with services rendered under this agreement.

If capital expenditures are contemplated in connection with the acquisition

of fire equipment for fire protection services, prior notice of any such

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Financial

The agreement provides that the Town will pay the Village an annual amount in monthly installments for fire protection afforded to a certain area of the Town. Paragraph 5 of the agreement further provides that the Village would remit a sum certain to the Village of Ossining Volunteer Fire Department. There is no indication in the original agreement as to how the amounts paid by the Town to the Village, or by the Village to the Village of Ossining Volunteer Fire Department were determined. However, we were provided with a copy of an email dated October 23, 2006 from Linda Abels to Connie Di Salvo (both of the Village of Ossining) that included a “Fire Department Services – Cost Analysis – Year 2007”.

The cost analysis currently used by the Village should be modified to include total costs and to allocate those costs using consistent data. The fiscal 2007 charges are calculated using fiscal 2005 actual fire department operating costs; 4% of general government costs representing the fire department’s share of general, and administrative overhead15; 25% of insurance costs16 for workers’ compensation, physical damage, auto collision, and unallocated insurance; actual debt interest related on debt issued for fire service equipment and facilities, and actual amounts expended for fire service costs but categorized as interfund transfers. The total of all of these costs is then allocated 27% to the Town as its share using the 2001 assessment roll and representing the percentage of assessments in the Town Outside Village assessment roll. The agreement and calculation are silent as to why the 2001 roll is used and whether the roll to be used is the total assessments or taxable assessments.

Immediately apparent is the fact that the Village is collecting significantly less than the cost of the service provided. The calculation does include costs for the fire department and allocated indirect costs. However, 35% ($56,667/$161,907) of the amount paid by the Town must be remitted to the Volunteer Fire Department. Further, the debt service costs include only the repayment of debt interest, and do not include the repayment of debt principal.

The calculation of charges can be improved significantly with the following modifications:

                                                            15 The calculation indicates that in fiscal 2005, total fire department expenditures represent 4% of total general fund expenditures. 16 The agreement and calculation are silent as to how the Village arrived at 25% as the appropriate allocation for insurance costs attributable to the fire department.

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The pricing formula should be incorporated into the agreement as a separate clause or appendix.

Amounts included as costs and used in calculating allocation percentages

(fire department operating costs, general government costs, total general fund costs, insurance costs, debt service costs, taxable assessments, etc.) should all source from the same fiscal year and preferably from the same published document, such as the annual budget document.

The agreement should allow for a year-end adjustment based on the audited

financial statements in the event that during the year there were significant variances between the original numbers used in the calculation and the actual numbers for the fiscal year. For instance, the Village should be able to recover the allocated cost of an expensive and unforeseen federal or state mandate that went into effect mid-year. Likewise, the Town should be entitled to a refund if the Village were to unexpectedly receive a grant for the cost of equipment that was included in the original calculation.

Principal paid on debt related to fire services should be included in the

calculation.

The calculation used to determine the allocation of insurance costs should be documented, and the calculation used for the allocation of workers’ compensation insurance will probably be different than the calculation used for the allocation of other types of insurance. The allocation of workers’ compensation insurance should be based on the workers’ compensation premium for volunteer firefighters using a percentage of taxable assessed value of the district to the total taxable assessed value of the Town. This same allocation percentage should then be, applied to general and administrative costs associated with workers compensation insurance.

Operational Since 1991, the costs attributed to the Town for fire protection have been based

upon a complex formula. The total of the Village’s annual fire department operating expenses incurred by the Village - two years prior to the actual service year - is divided by the total Village budget from the same year to determine the % of the total operating budget the fire department budget represents. That percent is then multiplied by the total of the Village’s “General Government Costs” and that sum is attributed to the Town as overhead. Then 25% (the audited figure) of both workers’ compensation and comprehensive insurance costs, along with debt service payments are added to the operating budget and calculated overhead to determine the “grand total” for fire department operations (all based on actual costs incurred two years prior).

GML 209 (d) limits the amount of contractual proceeds a Village can pay its volunteer fire department to 35% if the Village owns the fire department’s apparatus and

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equipment. Accordingly, the original 1991 agreement provided for the remittance of 35% of the contract’s proceeds to be paid to the Volunteer Fire Department. If the intent of the IMA in 1991 was to provide the Fire Company the maximum payment allowed pursuant to 209d, it is no longer operable. In subsequent years these payments did not amount to 35% of the contractual proceeds, since the Village has fixed this contribution at $110,162 in both 2007 and 2008 operating budgets (vs. $145,474 and $154,044 @ 35%).

In accordance with 209 (d) it should also be noted that any moneys paid over to a fire company pursuant to section 209-d are to be "expended for fire department or company purposes only" (see 18 Op. St. Comp. 1962, p 101). The IMA does not recite such requirements.

Also, although there is no statute requiring the fire company, which constitutes the village fire department, to submit its books and records pertaining to receipt and expenditures of the proceeds from fire protection contracts and fund raising to the village board for audit, the village board may make such a requirement a condition to entering into fire protection contracts for outside service (Op. St. Comp. 88-55). Financial information may be obtained under the provisions of the Not-for-Profit Corporation Law and the Freedom of Information Law. The board of fire commissioners or, if there is no board of fire commissioners, the board of trustees may require the submission of a report by the chief of the fire department. Id.

There should be a contractual reference to the statutory authority for the payments (GML 209d) as well as a provision for an independent audit of the proceeds obtained by the fire department under this agreement.

If not the current practice, it is recommended that the Ossining Fire Department be subject to the purchasing and investment policies of the Village of Ossining.

Further, it is noted that since the inception of the agreement, serial bonds and notes have been issued. An amended agreement should address these events and determine how capital expenses will be apportioned.

In a memorandum dated October 28, 2002 from Town Supervisor John Chervokas to Village Manager, Paul Shew, Ryder Road and Pine Road were “subtracted” from the total assessed value calculation of properties served under this agreement. A map illustrating the service area under contract should be appended to any subsequent IMA in lieu of defining the area by exceptions.

The Village should represent that its fire companies will respond with qualified, trained personnel. The IMA states that the department will respond with suitable apparatus and equipment, but does not represent that its responders are qualified to perform. The Agreement should either reference firefighter qualifications or state that all personnel are trained and qualified in a manner that meets or exceeds minimum standards.

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An addendum containing a non-discrimination clause specifically pertains to the

Village since the Village is responsible for approving the membership of its fire companies (see Charter C9-1; C9-2.). This representation should be made within the body of the IMA. Accordingly, the Village Board of Trustees is “authorized to regulate and determine the number of fire companies in the Fire Department and the number of men in each company, and to make any regulations covering the same” (C9-1). The Village should review and approve the form and content of each fire company’s membership application and its application process, as well as company policies, procedures and bylaws, to ensure compliance with non-discrimination provisions and related state and federal laws.

It is noted that there are paid dispatchers within the fire department. The source and method of dispatching could not be determined. The IMA should identify the means and methods of dispatch and response. The Ossining Fire Department’s website states that “the Town of Ossining contracts with the Village of Ossining for fire protection. We dispatch three engines, one ladder, and a rescue on all alarms to the Town of Ossining”. If this is true, this should be stated in the IMA as the protocol for response to all fire calls in the Town outside. If this is not the protocol, it should be changed to reflect current practice. Areas for Future Cooperation

The Town and Village should explore the feasibility of other models for fire service provision, including creating a Joint Fire District or a consolidated Fire District incorporated as an independent political subdivision.

The Town and Village should consider joint legislative and educational initiatives such as Knox Box provisions, site plan and subdivision referral provisions, and/or sprinkler system/smoke detector inspection programs. 3. Village Sewers

Legal According to the preamble to this agreement, the Town of Ossining has

numerous sanitary sewer districts that interconnect to the Village’s sanitary sewer system. The Village is receiving the sewage from those districts and the Town or its sewer districts has been collecting sewer charges from benefited property owners to pay for these services. Pursuant to this agreement, the Town agrees to make additional annual payments to the Village for the future disposition of sewage originating in the unincorporated area of the Town, currently served or otherwise. The parties agreed that, as of the date of the agreement, the unincorporated area of the Town consumed 10% of all metered water consumed in the Village system and that the use of this percentage to determine the payment by the Town for the use of Village sewers for the initial years of this agreement (1983-1985), would be “fair and equitable”. In 1985 the

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parties agreed to review water consumption in their respective areas to determine whether to adjust the compensation under the agreement.

This agreement provides for the Village to continue to accept sanitary sewage at

the interconnection of Town and Village sewers and to convey such sewage to the Westchester County Sewage Treatment Plant. The agreement authorizes the Village to permit the connection of future sewage lines serving the unincorporated area of the Town provided such new connections do not interfere with sewage disposal services required by Village residents. Construction of sewers in unincorporated areas of the Town shall be at the expense of the Town, a Town sewer district or a private developer and the connections to the Village sewers shall be in accordance with designs and specifications approved by the Village. The Town remains solely responsible for maintenance of all public sanitary sewers in the unincorporated area of the Town. Where the Village determines that increases in sewage flow from the unincorporated area of the Town require improvements of existing sanitary sewer lines, the cost of such construction shall be apportioned as the parties may agree. In the event of a dispute as to the need for the remedial work or the apportionment of the cost of such work the dispute may be submitted for resolution to a mutually acceptable consulting engineer whose determination the parties may agree is binding.

This agreement entered into in 1983 for a period of ten years expired by its terms

in May of 1993. No written evidence of any properly executed renewal or extension of that agreement with the requisite legal formalities has been provided by the Town or the Village. No mention is made of the applicability of Town and/or Village Code provisions relating to sewers. Village Code Chapter 212, Town Code Chapter 160.

Financial

In this agreement, the Village allows the Town to convey wastewater from Town

properties, and bills the Town based on metered water sales from those same properties.

Metered water consumption is an acceptable measure to use in calculating a charge or fee for wastewater usage. However, consideration should be given to amending the agreement so that the monthly fee for warm weather usage (April, May, June, July, August, September, and October) is based on average water usage during the winter months (November, December, January, February and March). Doing so would minimize or eliminate possible overcharges for water used that does not enter the sewer system (watering lawns, washing cars, power washing siding and decks, etc.). A review of the sewer rate structure is recommended to ensure that sewer fees are developed using an appropriate fee-setting process17 that includes, among other things,

                                                            17 Michel, R. Gregory. Cost Analysis and Activity-Based Costing for Government. (Chicago, Illinois: Government Finance Officers Association of the United States and Canada, 2004), 104.

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consideration of Village Board policies, recovery of full cost, and equity in the rates as to type of user (residential, commercial, industrial, etc.).

Consideration should also be given to incorporating the Parker Bale Lift Station Agreement into this agreement.

A study of the sewer rate structure is beyond the scope of this study, but it should be noted that rates should be structured to include the full recovery of costs, including capital costs. In fiscal 2006 the Village of Ossining Sewer Fund generated revenues of $697,140 ($844,041 budgeted) to cover $660,718 of expenditures and transfer out to other funds ($850,093 budgeted), resulting in a positive net change in fund balance of $36,42218. The unreserved and undesignated fund balance at December 31, 2006 was $1,434,287.19 While at face value this might indicate that sewer rates meet or exceed the amounts required for full cost recovery, the absence of more complete information on the current and future capital and operating needs does not allow for such conclusion.

The Sewer Fund is currently a “special revenue fund”. Special revenue funds are established to account for the proceeds of specific revenue sources that are legally restricted to expenditures for certain defined purposes. Other than the principal portion of debt, special revenue funds do not provide for the recovery of capital costs, the assets presented in the financial statements do not include capital assets (land, buildings, equipment, etc.) and the liabilities presented in the financial statements of such funds do not include outstanding debt and certain accrued liabilities (such as compensated absences). Consideration should be given to accounting for the activity of the sewer fund as an “enterprise fund”, which by definition is designed to act much like a private business enterprise. Enterprise funds are designed to recover the full cost of providing services (including capital costs) and their financial statements present a more complete picture of their financial position (assets including capital assets and liabilities including outstanding debt). Accounting for sewer activities in an enterprise fund will have the added benefit of eliminating many of the year-end entries that the Village finance office must make to comply with Government Accounting Standards Board Statement No. 34 Basic Financial Statements – and Management's Discussion and Analysis – for State and Local Governments (“GASB 34”).

Operational

This is a simple fee based agreement. The Town is agreeing to pay a fee for the

conveyance of sewage through the Village’s sanitary sewer infrastructure. It is not a cost-sharing IMA and consequently the agreement should reflect the proportionate costs that the conveyance of the Town’s sewage adds to the Village’s operating budget.

                                                            18 Village of Ossining Financial Statements and Supplementary Information, Year Ended December 31, 2006, with Independent Auditors’ Report, 66. 19 Village of Ossining Financial Statements and Supplementary Information, Year Ended December 31, 2006, with Independent Auditors’ Report, 65.

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The parties agreed that as of the date of the IMA, the Town consumed 10% of all

metered water consumed in the Village system. If the intent of the Sewer IMA was to have the Town pay a percentage of the costs attributed to the Village’s O and M for its sewer collection system, there should be agreement on what the cost drivers are. The original IMA determined the Town’s fee to be net of data processing, computer costs, debt service, and a portion of administrative salaries (not to exceed 4.5% of the total sewer fund budget). The Village’s current sewer fund budget contains the following additional cost drivers:

Parker Bale payments due to the Town Auditor costs Unallocated Insurance Engineering expenses Communication system Electronic data processing Town taxes (county taxes) Contingency account Transfers to capital Interfund transfers Fund balance appropriations to other funds Administrative salaries in excess of 4.5% of total budget Fringe benefits to Village employees

Also, it should be confirmed that all sewer districts in the Town Outside flow

sewage through Village sewer mains. Alternatively, a list of those districts served by the Village under this Agreement should be appended to the IMA. It is possible that some of the Town districts served accept sewage from properties outside the Town. If so, the Town should pursue reimbursements from benefited property owners.

There are no provisions in the IMA that address emergency notifications or service interruptions. An amended Agreement should identify the persons or party responsible for performance under the Agreement. There also needs to be a statement of responsibility for any system violations, overflows and/or illicit discharges.

Any renewal should re-examine the proportionate amount of water use (currently 10%) attributed to the Town to determine if that number is fair and equitable.

If in fact the same Town residents being charged a sewer use tax are billed directly by the Village for water use, the parties should explore the feasibility of accounting for the sewer use charge as a percentage of water consumed, and consequently the Village collecting this revenue on its water bills that are sent to the Town residents. The results may yield better cash flow for the Village, eliminate intricate accounting by both parties, and costs could be more equitably distributed.

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4. Parker Bale Lift Station

Legal This agreement provides for the Town to accept sanitary sewage generated by

the Mystic Point Condominium Development which is situated partially within both the Town outside and the Village and from certain other Village properties formerly connected to the Piping Rock Lift Station at the Town’s Parker Bale Lift Station. Under the agreement, the Village shall make annual payments to the Town for the use of the Town owned sewer facilities serving Village properties in an amount equal to 50% of the sewage flowing through the Parker Bale Lift Station, as per the formula set forth in the agreement.

This agreement was entered into in September 2000 for a five (5) year term

expiring December 31, 2004, After the agreement expired by its terms, the Town adopted a Resolution in March 2006 purporting to extend the expired agreement for an additional period of five (5) years. Assuming a similar resolution was adopted by the Village Board and further assuming the necessary documents extending the 2000 agreement were properly executed, the provisions of the 2000 agreement may be deemed to have been readopted.

Under the agreement, the Town agreed to permit the construction of future sewer

lines serving the properties in the Village provided such interconnections or extensions do not interfere with sewage disposal services required by Town residents. Such construction is to be in accordance with designs and specifications approved by the Town. All improvements made to the Town’s Croton Sewer District shall be maintained by the Town or the District.

Our suggestions for revisions of the two Sewer Agreements are as follows:

Identify locations of interconnections where one municipality receives the other’s sewage flow.

Consider whether metering of these interconnections is financially

feasible to more accurately measure sewage flow. Each municipality should provide the other with a license over its

streets or properties as are necessary for the construction of duly approved interconnections.

Establish procedures for review and approval of additional

interconnections and compliance with applicable provisions of the Town and/or Village codes.

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Designate the municipality that will monitor and inspect the construction of the additional interconnection and be responsible for acceptance of the work.

Establish procedures for billing and payment of bills. Establish procedures for issuance of permits to connect into the

sewer system. Require compliance by each community with all applicable rules

and regulations of the other municipality and County, State and Federal regulatory agencies with respect to sewage, pipes and facilities within its municipal boundaries.

Financial

In this agreement, the Village pays the Town annually for service provided by the

lift station to Village properties. The costs and revenues associated with the Parker Bale Lift Station are included in the Town of Ossining Croton Sewer District.

There are a number of deficiencies found in the calculation currently used (see paragraph 5 of the agreement) to determine the annual amount to be charged to the Village:

It is not clear as to whether or not the amount to be entered for “Croton

Sewer District Budget” should be gross (total appropriations) or net (total appropriations less revenues other than Parker Bale IMA revenues and/or appropriated fund balance)20.

It is not clear as to why the formula would exclude Croton Sewer District

debt service other than debt service associated with the Parker Bale Lift Station.

It is not clear as to why 75% of the Croton Sewer District (adjusted as

noted above) is related to the Parker Bale Lift Station operations. It is not clear as to why 50% of the amount attributable to operating the

Parker Bale Lift Station is attributable to the Village.

It appears that the Town and Village had agreed in principle that 1) 75% of the Croton Sewer District operations could be associated with the Parker Bale Lift Station,

                                                            20 The Town of Ossining 2008 Adopted Budget, page 113, indicates that the Croton Sewer District revenues include, among other items, real property taxes, sewer service charges, and interest earnings, and that the district also balanced its 2007 and 2008 budgets with an appropriation of fund balance.

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and 2) that the cost of operating the Parker Bale Lift Station should be equally shared between the Town and the Village (50/50). If this is the case, the amount representing “Croton Sewer District Budget” should include all debt service costs other than that associated with the lift station (the opposite of what the current formula provides) and an offset for those revenues or financing sources that benefit the entire Croton Sewer District (interest earnings, appropriated fund balance, etc.). The amount and basis used to calculate the allocation of the Parker Bale Lift Station as a component of the Croton Sewer District (currently 75%) should be confirmed and documented as part of the agreement. Likewise, the amount and basis used to allocate the Village share of the Parker Bale Lift Station (currently 50%) should also be confirmed and documented.

Absent a more definitive method of measurement (such as a sewage flowmeter), such allocations can be reasonably estimated using metered water sales to the benefitted properties. As noted in the analysis of the Sanitary Sewer Agreement, average monthly winter use of water would be a more appropriate measurement for estimating sewer use than actual year-round water use.

The Town may wish to incorporate the Parker Bale Sewer Lift Station Agreement into the Sanitary Sewer Agreement. The Town should also consider the benefits of accounting for all of its sewer activities as enterprise funds.

Operational

The Parker Bale Lift Station is owned and operated by the Town of Ossining. This IMA provides for the use of the Lift Station for the conveyance of sewage originating in the Village.

In 2007, the Village appropriated $0 in its Sewer Fund Budget line 8140.0506 (for Parker Bale) yet spent $17,689 through October 2007. Similarly, in 2008 the Village appropriated $0 for Parker Bale pump station expenses.

The Village should use historical cost data to estimate the annual payments it is obligated to make to the Town under this IMA and should cause an appropriation to be made for the same. As evidenced in the Town of Ossining’s 2008 budget, revenue from the Village’s use of Parker Bale of $17,000 has been anticipated within the 2008 Croton Sewer District Budget attributed to its use of Parker Bale Lift Station. The Village’s appropriation should be derived from the Town’s budget after consultation with the Town’s Budget Officer.

Applying the IMA cost formula to the adopted Croton Sewer District budget, the Village’s payment for 2008 would be $27,675. The IMA refers to an attached Schedule A (not appended) that referenced agreed upon “credits” to the Town for the O/M of Parker Bale in years prior to the commencement of the IMA. It then states “Thereafter, such payment shall be adjusted annually during the term of this agreement based upon actual budgeted amounts.” It is recommended that the Village pay its proportionate

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share on actual vs. budgeted expenses. An agreed upon method of audit and reconciliation should be implemented.

It is also noteworthy that expenses attributed to the Sewer IMA are appropriated within the Croton Sewer fund budget. These expenses should be excluded from the calculation of Parker Bale charges incurred by the Village under this IMA.

Coincidentally, the Town Board recently authorized emergency repairs to Parker Bale in the amount of $15,850 (see minutes of Town of Ossining dated April 8, 2008). The Town appropriated unreserved fund balance from the Croton Sewer District budget to a newly created capital account. Under the existing IMA formula, it appears that the use of fund balance and the subsequent transfer of fund balance to a capital account will preclude the Town from recovering the proportionate amount of repair costs from the Village. There should be an agreed upon method to recover such costs.

There is no prescribed method for handling disputes arising out of the administration or interpretation of this agreement. Also, the IMA contains no representations made by the Town, or expectations raised by the Village, relating to performance of the Lift Station or of the Town under this agreement should the station fail. The agreement is also silent with respect to emergency contacts and notice provisions. Absent are the reciprocal insurance provisions and hold harmless agreements that are incorporated in other IMAs between the Town and Village. Should the Town be issued violations for station overflows or backups at this Station, would the Village expect to pay a proportionate share of legal expenses and fines? Likewise, which party is responsible for ensuring the laterals from Mystic Pointe and the Piping Rock area are maintained properly and that there are no illicit discharges entering the station? It is recommended that this IMA be shared with the appropriate DPW officials of each municipality for review and comment prior to renewing the same. 5. Water

Legal

Under this agreement, entered into in January, 2002, the Village agrees to supply

water to consumers in the Ossining Town-Wide Water District at a rate 50% greater than the Village resident rate. The Village will read the water meters and bill customers directly. The term of this agreement, consistent with the General Municipal Law §118-a, is fifteen years (15).

The Village’s authority under this agreement is premised upon its possession of

a water supply in excess of its needs. We recommend that this be stated in any future agreement and provisions should be made in the agreement for its discontinuance if the Village’s water supply becomes necessary for its own needs.

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The agreement is silent as to the obligation of the furnished water to be “potable,” of good quality and properly treated as required by the New York State Department of Health and any other governmental body having jurisdiction.

Financial In this agreement, the Village provides certain Town properties with water

service, charged at a rate 50% greater than the rate charged by the Village to consumers within Village limits.

The Village can charge external customers any rate that is agreed upon, as is found in this agreement. The more important issue is whether or not the water rates themselves are set appropriately. Much like the Village of Ossining Sewer Fund, a water rate study is recommended, and the Village should consider accounting for water service activity in an enterprise fund rather than a special revenue fund. Absent the necessary current and future operating and capital needs to make an informed decision as to the viability of the current water rates, it is noted that Water Fund operations showed a negative net change in fund balance of $224,909 and $871,987 in fiscal years 2006 and 2005 respectively,21 and unreserved and undesignated fund balance decreasing from $1,903,575 in fiscal 2005 to $1,553,105 in fiscal 2006.22 This would appear to be an indication that the water rates are not properly calculated even without the inclusion of capital and full operating costs.

It is strongly recommended that a water rate study be performed to ensure that water rates properly reflect Village Board policy and provide for full cost recovery of water services.

A general note that applies to both the Water Fund and the Sewer Fund: the annual budget document summary page for each fund should include information as to the prior two years’ actual and current year estimated unreserved and undesignated fund balance, the rates to be charged in the forthcoming year, and the calculation used to arrive at such rates. Doing so will alert the Village Board to negative net revenue trends and the need to change the rates or rate formulae.

Operational

The Village of Ossining supplies water to the unincorporated area of the Town of

Ossining at a rate “50% greater” than the Village resident rate. The existing IMA is in effect through January 2017. Village employees read all water meters and the Village bills all customers directly.

                                                            21 Village of Ossining Financial Statements and Supplementary Information, Year Ended December 31, 2006, with Independent Auditors’ Report, 60-61. 22 Village of Ossining Financial Statements and Supplementary Information, Year Ended December 31, 2006, with Independent Auditors’ Report, 59.

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The Town owns its distribution system. However, all system maintenance is performed by the Village, and no extensions can be made without the Village’s consent. The Town is only responsible for clearing hydrants during snowstorms. There are no charges for water supplied to hydrants in the Town outside.

Water quality standards are conspicuously absent. The Village does not represent that the water is potable or that it meets or exceeds federal drinking water standards. Although system-wide sampling would be required, there is no reference to any sampling being performed in the Town outside.

Maintenance standards are conspicuously absent. The American Waterworks Association recommends the adoption of Ten States Standards for the maintenance of all public water supply systems. The Village currently subscribes to these standards.

It is not clear whether the parties intended to rely on the amendment dated March 2000 wherein the Town agreed to be bound to an amortized payment to the Village for capital improvements undertaken in the Town if it ceased being a water customer of the Village through the year 2010. The current agreement extends through 2017 and is stated to “be binding upon and inure” to the benefit of the parties. There is no termination or cancellation provision.

There is an apparent legal “disconnect” in the method relied upon to collect delinquent water charges. The agreement states that any charge that is delinquent for three or more months will be “levied” against the delinquent property. The Town would then remit the amount collected to the Village. However, the debt is owed to the Village and consequently would have to be pursued by the Village in a legal action. The Town may be precluded from acting as a guarantor and bill collector for the Village.

If the Village is the only party responsible for treatment (disinfecting and filtering) of the water purveyed to Town residents, it should represent that its water quality meets or exceeds federal drinking water quality standards.

The Town should require that all system improvements and maintenance performed on the same be in accordance with the best practices cited within Ten States Standards.

While there is ample justification for charging higher rates to individual customers in the Town outside, The Town itself is charged premium rates (1.5 times the Village resident rate) for water used for municipal purposes such as at Town parks. A recent water bill at Engle Park was excessive due to the installation of a spray park. The IMA should establish a separate rate for municipal water use because all Town residents enjoy public parks. Related to this, tap fees, meter fees, and other charges should not apply to Town park infrastructure improvements. Under the IMA, the Village is required to “temporarily patch” any pavement that it disturbs when repairing or performing work on “any part” of a road in the unincorporated

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area of the Town. An exception should be noted for any roadway disturbed as a consequence of repair or work on the Village’s transmission mains in the Town outside. The Village should be responsible for the repair of the same to the satisfaction of the Town Superintendent of Highways.

Unspecified rules and regulations (see par. 6) of the Village of Ossining are applied to all water consumers. The Village’s rules and regulations should be appended to the agreement, or alternatively the agreement should note where these could be found.

The agreement should address how notifications will be made to all water customers for events such as hydrant flushing, service interruptions, boil water alerts or activation of drought emergency rules and regulations.

The Village, as a public water supplier, is required to distribute annual water quality reports to all consumers. As a matter of practice, the Village should present this report to the Town Board in advance of public distribution.

The IMA should provide for mutual and timely notification to both Village and Town officials of any reportable operational or water quality violations.

The Village can freely enter into an agreement with the Town outside to sell water from its own water source, Indian Brook reservoir. However, it also represents that it has obtained a “takings permit” from the New York City Department of Water Supply, Gas and Electricity (now defunct and known as the New York City Department of Environmental Protection or NYCDEP) that permits the Village’s taking and use of water from Shaft #4 at the New Croton Aqueduct. The Village asserts in the IMA that this additional source of supply guarantees that water is available for both the Village and Town outside. According to its annual water supply report, 63% of water consumed is from the Croton reservoir. While beyond the scope of this study, the Village of Ossining should confirm with DEP officials that it has the right to take water from Shaft #4 for distribution to consumers in the Town outside. At issue here are the rates New York City charges for “per capita” charges, and the City’s requirement that all customers be incorporated into a water district authorized by the DEP. In the absence of such authorization, the Village can only represent that it can provide water from its own source (Indian Brook reservoir) provided it has to capacity to do so independent of another source of supply. Areas for Future Cooperation

The Town collects real property tax payments in excess of $180,000 per year for the Village’s water infrastructure and property that lies within the unincorporated Town. The Town should consider abating or offsetting its portion of this tax revenue for consideration of reduced water rates to for its residents.

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The Town and Village may wish to jointly cooperate and participate in a system-wide vulnerability assessment. 6. Comptroller and Treasurer Functions

Legal

By Local Law 1 of 1993, the Town abolished the office of Town Comptroller upon

the expiration of the term of office of the then incumbent or upon the incumbent’s resignation whichever occurred sooner. Pursuant to that local law, the powers and duties of the Comptroller were to be assumed by the Town Board and/or Town Supervisor as provided in Town Law §29.

Thereafter, on or about March 1994, the Town and Village agreed to designate

the Village Treasurer to administer the Town’s financial, accounting, data processing and purchasing functions.

Under the unsigned version of the agreement that we have been provided, the

term of the initial agreement was approximately thirty-three (33) months, terminating on December 31, 1996. However, the agreement contains a default renewal clause providing that absent a notice to terminate prior to July 1 of any year, the agreement continues on an annual basis under the same terms and conditions as prior year, “subject only to a revision of financial figures.“ Presumably, this agreement remains in effect today. Given that the Treasurer is a Village employee, we note that the Town Code of Ethics would not apply to prevent conflicts of interest or unauthorized use of confidential information arising out of the Treasurer’s performance of services for the Town as delegated to the Treasurer by the agreement.

The Treasurer and all employees rendering such services shall remain Village

employees. Town functions to be performed by the Treasurer are detailed in Appendix A of the agreement. The Town shall pay for the Treasurer’s services in accordance with the provisions of Appendix B of the agreement. Compensation to the Village for Town services provided by the Treasurer is to be calculated based upon an agreed upon proportion of the projected costs of the combined Comptroller and Treasurer’s office, the salaries of the persons working in that office and the administrative expenses of that office as set forth in Appendix B of the agreement.

The Village shall obtain a fidelity bond and errors and omissions insurance on the

Treasurer in amounts to be agreed upon by the parties. Any additional premium paid for the cost of the bond and insurance shall be an additional expense to the Town.

All money dispersed and collected on behalf of the Town will be maintained in

separate bank accounts. All automated accounting shall be maintained separately to prevent comingling of funds and posting errors. Funds of the Village and Town are to be invested separately in accordance with each municipality’s investment policy. Joint investments are subject to the approval of both boards.

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In the event of a vacancy in the position of Village Treasurer, the Village

Manager and Town Supervisor shall interview candidates. At a joint meeting of the Boards, the Village Manager shall present at least two (2) candidates for consideration. Thereafter, the Village Board shall recommend to the Manager those candidates it would be willing to ratify.

The Attorney General has opined that the positions of Town Comptroller and

Village Treasurer are compatible and may be held by the same individual. In that opinion, however, the Attorney General noted that, in certain circumstances, such as “a contract or other relationship between the Town and Village, creating a conflict between the duties of the two positions,” recusal from participating in such a matter may be required. 1997 Op. At Gen. 53. Another concern from this dual office holding would be access to confidential information of one municipality that may be relevant to the exercise of the responsibilities in the other municipality.

Financial

In this agreement, the Village Treasurer performs certain functions that would normally be performed by the Town Comptroller.

There are some major issues that require correction in this agreement.

First, the appendices that enumerate the duties and functions to be performed are too detailed and specific. The appendices may also include references to items or processes that no longer exist. For the most part, the duties and functions found in these appendices can be found in Town Law for the positions of Town Comptroller, Director of Finance, and Budget Officer. We recommend that rather than a set of lengthy appendices, the agreement should simply reference the appropriate sections of Town Law, noting of course what duties and functions, if any, would be different from those stated in Town Law.

Second, the calculation of the costs associated with the operations of the Village Treasurer does not include some direct costs (such as benefits), nor do they include indirect costs (general and administrative overhead, building and facility costs, etc.). The amount charged to the Town should be designed to recover full cost, both direct and indirect.

Finally, the allocation of costs associated with the Treasurer’s office should be recalculated to ensure that it is both fair and appropriate. This calculation should be documented and include narrative and/or notations as to the basis for the inclusion, and if necessary for clarity, the exclusion, of factors, allocations, and formulae used in the calculation. The data used in the allocation formula should be easily found and verifiable. For instance, payroll costs can be allocated based on number of paychecks issued; accounts payable costs can be allocated based on number of claims or invoices processed; and cash receipts costs can be allocated based on number of receipts processed. The agreement should also provide that the allocation of costs would be

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reviewed and adjusted periodically, but at least every three years and whenever there is a noted significant change in duties or functions.

An important distinction to note in reading the above is that while the allocation of costs should be reviewed and adjusted at least every three years, the amount to be charged should be recalculated annually. The annual amount to be charged should be concurrent with the development of the annual budget.

It should be noted that page 6 of the Town of Ossining 2008 Adopted Budget does not include any amount for the payment of Comptroller services as would normally be required under this intermunicipal agreement.

Operational

On February 9, 1993 the Town Board enacted a local law that effectively

abolished the position of Town Comptroller, requiring that the powers and duties of the Comptroller pursuant to Town Law (section 34) be transferred to the Town Board or Supervisor in accordance with Town Law (section 29). The IMA refers to the Supervisor as the Chief Financial Officer of the Town.

The Village Treasurer administers the unincorporated Town’s financial, accounting and data processing functions in accordance with the Town’s budget that may be amended from time to time.

All employees rendering such services have remained Village employees and perform all work under the direction of the Village Treasurer. Functions are detailed in Appendix A of the agreement.

Revenues of the Town are deposited in Town accounts.

All expenses and disbursements to be paid are submitted to the Treasurer by the Town supervisor or a designee on Town vouchers.

The Town pays a portion of the salaries paid to the Treasurer and other village employees assigned to assist the Treasurer perform the listed functions. The Town also pays its share of overhead expenses such as stationery, postage, and copy paper.

There was no evidence of compliance with the requirement that the Village obtain a fidelity bond on the Treasurer in an amount equivalent to the amount of money the Treasurer is responsible for on behalf of the Town. According to the IMA, any additional premium paid by the Village for the cost of the bond would be an additional expense to the Town.

Money dispersed and collected on behalf of the Town is maintained in separate bank accounts. All automated accounting is maintained separately to prevent co-mingling of funds and posting errors. Funds of the Village and Town are invested

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separately in accordance with each municipality’s investment policy. Joint investments are subject to the approval of both boards.

Neither the IMA nor the Town Code relieved the Town Supervisor of obligations as Chief Financial Officer (CFO) for the Town. Duties of the CFO are defined throughout Town Law. The Town should review these obligations in the context of its expectations under the IMA to ensure that those duties statutorily assigned to the Supervisor are properly discharged by that office or assigned in accordance with the provisions of Town Law. The IMA does not assign the Village Treasurer the title of Town Comptroller. This fact underscores a source of confusion and frustration among the parties involved in interpreting and administering functions under this IMA.

In addition to stating that that the Village Treasurer will work in consultation with the Town Supervisor, the IMA should acknowledge the need to consult with designees such as the Town Budget Officer.

Appendix A of the agreement not only lists the functions the Village Treasurer is expected to perform under the agreement; it attempts to define the means by which such functions should be performed. Many of the listed tasks were required to be performed only once at the inception of the IMA and are now obsolete. In order to provide language that satisfies the intent of the agreement and to provide for administrative flexibility, the IMA should state that:

Routine financial administration functions to be performed on behalf of the Town shall include, but not be limited to:

All tasks relating to a) account maintenance, budget and journal entries, b) accounts receivable and payable; c) payroll processing, d) debt issuance and administration, e) bank statement reconciliations, f) preparation of annual reports and audit assistance, g) cash management and investment.

In addition to the routine functions to be performed, the Village shall maintain and update the automated financial accounting system as may be required from time to time and provide support to all system users authorized to access the finance department’s server(s).

It should be noted that there has been considerable expansion of both the Town and Village’s IT needs and consequently expanded expectations for IT services. This coincides with the widespread use of computers and networks since the inception of this agreement. The Town’s expectations and needs for IT support go far beyond the IT services provided for under the IMA. Both the Town and Village should jointly participate in and develop an IT Master Plan that evaluates the adequacy of the human, technological, and financial resources currently available to them. It will be necessary to develop a plan for managing and storing data, updating hardware, software and peripherals in light of emerging technologies, and licensing software.

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In the interim, the Village and Town need to agree on the intent of this IMA with respect to IT services provided, and determine an equitable way to share costs related to the same.

The agreement should oblige the Village Treasurer to perform tasks that are generally prescribed to a Town Comptroller. The Office of the Town Comptroller has the following general responsibilities described under Town Law 34:

Keep separate appropriation accounts as described by Town Law and

preventing the over expenditure of such accounts. Draw upon funds authorized by the Town Board. Assist the Supervisor in preparing the Town's annual Operating

Budget. Furnish to the Supervisor information and data necessary to enable

the exercise of powers, performance of duties and generation of reports required by law as the chief fiscal officer.

Other responsibilities include all financial data collected and recorded

properly as mandated by New York State Audit and Control and following all current accounting and auditing principles and standards.

The responsibility of the Comptroller is to implement and administer

the financial policies of the Town as set forth by the Town Board. The IMA could simply state that the Village Treasurer will perform all

of the general responsibilities of a Town Comptroller as described under Town Law 34. (This should include fiscal analyses, fund balance and budget forecasting, and internal auditing if not prescribed to the Town Budget Officer).

There should be a provision for dispute resolution that does not involve

convening both boards as an initial step.

The agreement should indicate who, on behalf of the Town, has signature authority for all disbursements. As a matter of policy, there should be two (2) signatures required on every check processed.

The method by which costs for services are apportioned under this IMA is illustrated in Appendix B of the agreement. Cost to the Town should be proportionate to work load and outputs that are measurable. Consideration should include but not be limited to the following functions:

Number and amount of vouchers processed for each municipality

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Number of employees W2s prepared for each municipality Number of 1099’s prepared for each municipality Population served in each municipality The municipal budgets of each municipality

If they prefer to continue to allocate the cost for these services on a percentage

of the operating budget, the parties must acknowledge the cost of fringe benefits absorbed entirely by the Village, including retirement system contributions (if any). As written, the Village of Ossining will absorb the cost of post-employment benefits that inure to the employees of the Village finance department, and the Town will not be contributing toward such expenses. It is recommended that the parties recognize these costs as reciprocal obligations. Under such agreement, the fringe benefits carried by the Village under this IMA can be offset by the fringe benefits carried by the Town under the Clerk IMA.

Also, as with most of the IMAs examined, there was no evidence of compliance with insurance provisions and related representations. The Village should contact its insurance carrier, review the exposures created under this IMA, and obtain the requisite fidelity bonds and insurance. Areas of Future Cooperation

The Village and Town should consider expanding the IMA to include tax collection functions. The Town is best suited and staffed to perform these functions. There could be an offset in the cost to the Town under this IMA for performing tax collection on behalf of the Village.

To the extent practical, the Village and Town should adopt similar policies and procedures for purchasing, investing public funds, payment of audited claims, and payroll processing. This can reduce incidents of errors and/or omissions in practice.

The Village and Town should develop an IT Master Plan as discussed above.

7. Town and Village Clerk Functions Legal

Under this agreement, the Town Clerk assumes the additional responsibilities of

performing the duties of the Village Clerk under the direction of the Village Board and the Village Manager. Although not mentioned in the agreement, the Village Charter provides for the consent of the Town Clerk to such appointment. Charter § 2 -9.

This agreement dated April 14, 1993 was executed by the parties in August,

1996. Paragraph 1 of the agreement states that it shall be effective from the date of signing (August 5, 1996) to December 31, 1996. However, that provision further states that absent timely notice not to renew given on or before July 1 of that year (an

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impossibility in the initial term), the agreement would be renewed on an annual basis on the same terms and conditions, subject only to a revision of financial figures. Presumably, this agreement remains in effect.

The Town Clerk and all employees of the Town performing services for the office

of the Village Clerk will be responsible for the administration of thirty five (35) duties assigned the Village Clerk as set forth in Appendix A of the agreement. The Town Clerk will be appointed to the position of Village Clerk by the Village Board of Trustees and shall serve as the Village’s Registrar and Records Management Officer.

The Town Clerk as Village Clerk administers and collects fees for ten (10)

specific permits and licenses set forth in Appendix B of the agreement. All revenues are deposited to the Clerk’s account as depository for the Town. Fees collected on behalf of the Village are to be detailed in monthly reports submitted to the Village Board and Village Manager. All fees due to the Village are to be paid over to the Village Manager when the monthly report is submitted. Registrar of Vital Statistics functions are to be consolidated and all vital records of the Village are to be turned over to the Town Clerk. The Village reserves the right to audit the records of the Town Clerk that pertain to the Town Clerk’s discharge of Village Clerk duties and responsibilities.

For services performed under this agreement, the Village shall pay monthly an

amount set forth in Appendix C to the agreement. The amount paid shall cover the Village’s proportionate share of the cost of the combined Clerks’ office and the salaries and benefits23 paid or expended by the Town to or for the benefit of the Town Clerk and staff. Payments shall be made to the Town on a monthly basis based upon vouchers signed by the Village Manager.

                                                           

Paragraph 3 of the agreement refers to the duties of the Village Clerk set forth in

Appendix A. Reference should be made to C 3-9 of the Village Charter detailing the powers and duties of the Village Clerk.

Paragraph 5 of the agreement “Administrative Expenses” provides that the

Village shall compensate the Town for the Town Clerk’s services in an amount set forth in the Appendix “C”. Appendix C contains a method of calculation for 1993, 1994 and 1995. Presumably, as provided for in paragraph 2 of the agreement, these financial figures have been annually revised. Since compensation is an integral element of the contract and the original agreement does not contain a specific formula from which the calculation of the annual change in compensation becomes a ministerial act, annual financial adjustments should be approved by both legislative bodies as an amendment to the contract.

The agreement provides for the Village Board’s appointment of the Town Clerk

as the Village Clerk. Conceivably, in the event of the resignation of the Town Clerk, such Town Clerk, as opposed to the then current Town Clerk, could continue to serve

 23 Contrary to paragraph 5 of the agreement, Appendix C states that only actual salaries not including benefits will be included in the calculation of compensation under the agreement.

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as Village Clerk for the remainder of the four (4) year term. We also note that the Village Clerk must be a resident of the Village, unless the Village Board provides by resolution that the Village Clerk may reside within the County of Westchester or any adjoining county. C 2-8.

When preparing future agreements, a provision addressing liability for the acts of

the Town Clerk when serving as Village Clerk should be included. The concerns regarding conflict of interest and access to confidential information in the previous section relating to the Village Treasurer are equally applicable here.

Financial

In this agreement, the Town Clerk performs certain functions that would normally

be performed by the Village Clerk.

The deficiencies in this agreement are similar to those found in the Village Treasurer and Town Comptroller agreement. Appendix A of the agreement, which enumerates a number of duties and functions, could be replaced by a reference to the appropriate laws defining the duties and functions of a Village Clerk, noting any exceptions that would apply to this agreement. The calculation of the costs associated with the operations of the Town Clerk does not include the cost of benefits or the indirect costs that can be attributed to the Town Clerk’s office. In fact, there is a conflict within the agreement as written, where page 3 of the agreement states that the cost charged to the Village “…shall cover the Town’s portion of the cost of the salary and benefits…“ [emphasis our own] while page 9 (Appendix C) indicates that the amount charged to the Village should include “…actual salaries (not including benefits)…” [emphasis our own]. Likewise, the allocation of costs should be reviewed and adjusted at least every three years (or whenever there is a significant change or shift in duties or functions), and the annual amount to be charged should be calculated annually with the development of the annual budget. Operational

The Town Clerk and her deputies have absorbed the functions of the Office of the Village Clerk and the stated duties of the Village Clerk. The Town Clerk serves as Registrar, as Village Clerk, and as the Records Management Officer for the Village. However, there are substantial deviations occurring in practice and interpretation in the application of all appendices under this agreement.

The thirty-five (35) municipal clerking functions assigned to the Office of the Village Clerk and set forth in Appendix A of the agreement are iterations and extensions of duties of the Village Clerk that can be found throughout the Ossining Village Code as well as those prescribed to this position in Village Law of the State of New York, Section 4-402.

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The Village of Ossining’s Charter states in part: Nothing herein to the contrary withstanding, the Board of Trustees, upon the consent of the Town Clerk and the Town Board, may appoint the Town Clerk the Village Clerk (Charter C2-8). There is no reference to the affirmative acceptance (consent) required by the Town Clerk in the IMA.

A review of the appended duties with Town Clerk Mary Ann Roberts revealed that the following functions (or portions thereof) are not currently responsibilities of, or duties performed by the Town/Village Clerk:

Function #4. Draft resolutions for Board of Trustees meetings for approval by Village Manager and/or corporation counsel. In practice, the Village Manager submits resolutions to the Clerk for inclusion on the Board’s agendas.

Function #6. Maintain official copies of the Code of Ordinances and

Zoning Ordinances. The zoning ordinances are not kept in the Clerk’s office.

Function #10. Maintain a current list of all village vehicles and drivers

licensed to operate these vehicles. The Clerk maintains a list of all Town and Village vehicles (including titles for each). A list of drivers is maintained only for the fire department.

Function #19. Accept all applications for rezoning properties; refer to

Village Board of Trustees for transmittal to Planning Board of review and recommendation. Accept required fee. Rezoning applications are first received by the Building Department. Referrals come from the Building Department and that office collects fees.

Function #20: Zoning Appeals: notify all property owners in accordance

with Village Zoning Ordinance, prepare legal notice, advertise and post notice for Public Hearing, notify Westchester County Department of Planning and other affected municipalities. The Building Department administers all matters relating to zoning appeals.

Function #21. Maintain Zoning Map of the Village of Ossining. File

minutes of the Planning Commission and Zoning Board meetings. Keep record of timing for filing appeals for suits against the Village. Sell Zoning Books. The Building Department maintains the zoning map and sells zoning books. It is not known if any official keeps a record of timing for filing appeals for suits against the Village.

Function #25. Maintain a list of official Village Depositories for Village

funds. The Clerk does not maintain a list of official depositories.

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Function #31. Prepare budget for the Village Clerk’s Office, Animal

Control Department, and Codification of Ordinances. The Clerk does not prepare the budget for the Animal Control Department.

Function #32. Process all vouchers for the Village Clerk’s Office and the

Fire Department. The Village Clerk does not process vouchers for the Fire Department.

Function #33. Be responsible for commercial parking for all municipal

lots. The Village Clerk’s role is limited to the sale of parking tags. Inventory control, lot operations and maintenance are responsibilities of other departments. It is noted that commercial parking is currently prohibited in all municipal lots.

Function #35. Be responsible for payment of all insurance claims. Claims

may processed by a third party administrator as authorized by the Village Board. Others prepare payment vouchers.

There is no need to restate statutory duties of this office. The agreement could

simply state: “The Town Clerk shall perform all Village Clerk duties as set forth within Village Law of the State of New York and as set forth within the Code of the Village of Ossining, and shall perform any and all functions consistent with the provisions of said applicable laws”.

The Village should undertake a comprehensive review of those functions that are not being performed by the Village Clerk to determine if any are statutorily prescribed to the Village Clerk under the Code of the Village of Ossining. Likewise, the Code should be reviewed to determine if any Clerk functions are omitted entirely from Appendix A. If it is determined that some functions are prescribed and not performed, or conversely performed and not prescribed, the Village Board must either amend the Code, cause the Appendix to the IMA to be amended, or assign the tasks stated therein to the appropriate Village official(s). The Village Board should have greater flexibility in assigning tasks that it deems to be consistent with the functions of the Office of Village Clerk, and should state its reasonable performance objectives in the IMA.

Appendix B to the IMA lists ten (10) specific licensing and/or permitting functions. All are related to ordinances adopted by various Village Boards that have been duly codified in the Village Code.

There are several current administrative procedures that deviate from the IMA.

Specifically, the IMA requires that fees collected on behalf of the Village pursuant to Appendix B be deposited in the Town Clerk’s account and paid to the Village at the end of each month. In practice, all fees, except the fees collected for commuter parking, are

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turned over monthly. Commuter Parking fees are turned over to the Village on a daily basis and not held in Town accounts. The monthly report to the Village Board and Village Manager (function #16) is actually certified by the Village Clerk to the Town Supervisor, not to the Village Board of Trustees. Also, there has been an amendment to this function that states in part “Revenues for all Village licensing …should be credited to Village accounts”. It is presumed that this was intended to override the IMA provision that all Village Clerk fees were to be deposited in the Town Clerk’s account and transmitted at the end of each month to the Village. However, in current practice only commuter parking fees are transmitted daily to the Village for deposit.

Restating that the Town Clerk as Village Clerk will perform all licensing and permit functions as set forth in the Village Code should suffice here. This will avoid the need to amend the IMA whenever the code is amended and will ensure that the Village Board retains a degree of flexibility required to facilitate its stated goals under this Agreement. For example, it is noted that on the Village Clerk’s webpage the Clerk issues a license or permit for “Going Out of Business”. This is not listed as function of the consolidated Clerk’s Office in Appendix B.

The Village should seek an opinion from its independent auditors concerning the timing of its clerical receipts and deposits and the Clerk should act in accordance with this advice.

Appendix C of the agreement sets forth the administrative expenses and charges for consolidation of Village Clerk with Town Clerk.

The formula used to allocate costs to the Village under the IMA graduated from “an agreed upon proportion” of the costs of the combined office and actual salaries of the persons assigned to the Clerk’s office, to the allocation of cost based on budgeted salaries and budgeted contractual expenses. This contradicts certain language in the body of the IMA (see Paragraph 5 ADMINISTRATIVE EXPENSES) wherein it is stated that the amount paid by the Village “shall cover the Town’s portion of the salary and benefits paid or expended by the Town to or for the benefit of the Town Clerk and the Clerk’s staff and it shall also cover a ‘reasonable’ share of ‘administrative’ (office) expenses. As written, the Village is agreeing to pay the full freight of personnel expenses attributed to the Town Clerk’s office (salaries and benefits) and a “reasonable” share of office expenses!

When this IMA was executed, the costs to the Village had been determined to be 21.75% of the total cost of the salaries (excluding benefits) and contractual costs of the office of the Town Clerk in 1993. Despite the asterisk associated with this percentage, there are no corresponding notes to indicate how the percentage was derived.

Currently, this ratio bears little resemblance to the ratio of work attributed to the functions of the office performed for the benefit of the Village. According to the Town/Village Clerk, work performed on behalf of the Village of Ossining is estimated to be 75% of the office’s workload.

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It is worth mentioning that, to the benefit of Village residents, the Town must

account for the Village’s IMA payment for Village Clerk services as General Fund Revenue.

Town Clerk fees for Town functions average a modest collection of $7000 per year. Some of the revenues to be collected on behalf of the Village in 2008 include $500 for Clerk Fees- Fire services; $310,000 for parking revenues; and business license fees of $21,000 for a total of $331,500.

Proportionately, in 2007 the office of the Town Clerk administered 19 FOIL requests for the Town and 347 for the Village of Ossining.

To resolve the significant difference between the cost allocated to the Village (21.75%) and the work performed by the office staff on behalf of the Village, desk audits should be performed to determine the percentage of work each office employee attributes to the functions of the Town and the Village.

Costs to the Village should be proportionate to work load and outputs that are measurable instead of to the operating budget of the Town Clerk’s office. Consideration should include but not be limited to the following functions:

Number of licenses issued for each municipality Number of permits issued for each municipality Number of FOILS administered for each municipality Number and length of meetings attended for each municipality Amount of money the office generates for each municipality Population served in each municipality

If it is preferred to continue to cost this service on a percentage of the operating

budget, the parties must acknowledge the cost of fringe benefits absorbed entirely by the Town, including retirement system contributions. As written, the Town of Ossining will absorb the cost of post-employment benefits that inure to the employees of the Town Clerk’s Office, and the Village will not be contributing toward such expenses. The IMA should also acknowledge the rent expense incurred by the Town to the Village for use of shared space for Town/Village Clerk Office functions. It is recommended that, as a “quid pro quo”, the Village consider not charging the Town rent for use of the first floor of the municipal building in consideration of the amount of services the Clerk’s office performs for the Village when compared to the percentage of its budget paid by the Village.

It has also been mentioned that the Village residents are “paying twice” for Town Clerk services by virtue of their Town tax payment supporting the Office of the Town Clerk. However, by statutory obligation to support two forms of government, Village residents are obligated to support two separate and distinct Clerk functions. Just because the people in the positions are one and the same doesn’t hold true to the

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positions- they are required to be performed and filled under the laws of the state of New York that govern both Villages and Towns.

Although the Clerk is required to maintain a list of Village vehicles and drivers that operate Village vehicles, currently the Clerk maintains a list of drivers only for the Fire Department. Although there is no stated purpose for this function, more likely than not it was intended to be a means by which the Village could inform its underwriter for related coverage, and also by which it could verify that persons driving a village vehicle had a valid drivers’ license to do so. Up until a few years ago, it was not possible for a municipality to obtain up to date verification or notifications regarding the status of an employee’s drivers’ license. An insurance underwriter might check the status of all drivers preceding an annual policy renewal period. More often than not, the employer had to rely on the employee advising it of such incidents. NYSDMV now offers a service to government agencies and volunteer fire departments known as the License Event Notification Service (LENS). LENS provides up-to-date information about the driver records of employees or volunteers. A designated official is automatically notified by e-mail of driver license events that occur. Commercial organizations and not-for-profit organizations must pay a fee to participate in LENS. This service is free to both government agencies and volunteer fire companies. By using LENS, both communities can quickly identify any problem drivers and manage such risks more effectively.

The Village and Town should consider the benefits of enrolling in the LENS program http://www.nydmv.state.ny.us/LENS/default.html.

Pursuant to Village Law Article 6-628 the Village Clerk is required to keep an indexed record of all written notices of defects.24 If the Boards desire to keep an appendix of clerk functions, this important task must be included. Moreover, the Village Clerk should, as a matter of practice, immediately provide a copy of all notices of defect to the Village Manager. The IMA should state where the Village Clerk’s office will be located and what the office hours will be. It is noted that the Town and Village have different office hours.

FOIL procedures for the Town and Village should be uniform. The Town of Ossining Code does not require any “written application” from persons wanting to examine records in the office of the Town Clerk (Town Code, Section 45-3). The Town should discuss its FOIL procedures with its Clerk and its Town Attorney to determine if its code should be amended.

                                                            24 According to the Village/Town Clerk, Mary Ann Roberts, a “Defect Book” is maintained and notices of defect received are forwarded to the appropriate department and filed in that book.

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8. Recreation Functions

Legal This agreement provides for the Village Superintendent of Parks and Recreation

to administer a combined recreation program for the Town and Village. This agreement, although dated December 31, 1992, was executed by the parties in August, 1996. This initial term of the agreement extended from August, 1996 to December 31, 1996. As in the case of several of the other agreements previously reviewed, there is a provision for default renewal absent timely notice to terminate. Presumably, this agreement has not been terminated and remains in effect.

The Village Superintendent will administer an Ossining Recreation Program

based from the Ossining Community Center. All Town recreation department personnel became Village employees as of January 1, 1993. All program property (listed as inventory and annexed to the agreement) previously used by the Town to administer its recreation program is to remain property of the Town. Upon termination of the agreement, Town property is to be returned to the Town in “repaired or replaced” condition. The Town is to pay the Village for these services in accordance with a formula described in the agreement. The Town is not obligated to pay rent for the use of the Ossining Community Center or other space assigned by the Superintendent and used by the Town for office, storage or other purposes.

The Town is to maintain public liability insurance coverage for its operation and

maintenance of all Town parks in an amount agreed upon by the Town and the Village. The Village is to be named as an additional insured. The Town also agreed to indemnify the Village for losses, damages etc. resulting from acts by the Town in connection with the Town’s operation of its parks or any equipment or improvement in such parks.

During the term of the agreement the Village is to maintain a minimum $10

million public liability policy covering all recreation programs, functions and activities operated or sponsored by the Village and administered on behalf of the Town. Also the Village agrees to indemnify the Town, to the extent of the insurance coverage provided, for damages, losses etc. arising out of the Village’s operation of the Joint Recreation Program. Losses in excess of the amount of insurance coverage are to be apportioned by the Town and Village according to the ratio that their respective recreation budgets bear to the sum of the recreation budgets of both.

Paragraph 1 provides for the continuation of the agreement on an annual basis

on the same terms and conditions as the preceding year, subject to a revision of financial figures. That paragraph states that the agreement cannot be “amended, modified, altered, renewed or otherwise changed without the approval of both the Board of Trustees and the Town Board.” Changes to the financial formula would require joint legislative approval.

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We also note that there are various appendices attached to the agreement but

they are not referenced in the body of the agreement. Paragraph 5 contains cross indemnification clauses which may be inconsistent with a further provision in that paragraph requiring that any losses above the limits of the insurance be apportioned between the municipalities based upon the respective proportions of their recreation budget to their combined recreation budget of the two municipalities.

The legal status of the 1992 Memorandum of Understanding (“MOU”) between

the former Park Maintenance Supervisor and Recreation Superintendent should be clarified. The signatories to that agreement would not appear to have authority to bind their respective municipalities. Presumably, this MOU, given that it is not referenced in the IMA, was superseded by the execution of the IMA in 1996.

Notably absent from the IMA are any performance criteria, standards or

description of the components of the recreation program to be conducted or that such program will be adequately supervised and provide appropriate safety measures for program participants. No mention is made of any role for either a Town or Village or joint Town/Village Recreation Commission. Nor does the agreement mention the facilities of the Town and Village to be used for the recreation program and who will be responsible for maintaining and repairing those facilities and at whose cost.

Financial

Prior to the Recreation Functions Agreement, the Town and Village each had

their own respective recreation programs. The agreement consolidated both programs, including existing employees, into a single program operated by the Village and supervised by the Village Superintendent of Parks and Recreation. The Town pays the Village an amount annually that represents the Town’s share of net recreation program costs (program costs less program revenues), allocated using a formula based on what were the 1992 recreation budgets for both entities (Town and Village).

There are a number of issues that need correction in this agreement. The allocation of costs associated with 1992 activity might not represent current or future costs. The Town and Village should consider a more appropriate allocation formula, such as one using the number of attendees from each entity participating in a program. Program costs should be calculated using all direct and indirect costs, such as benefits, insurance, general/administrative overhead, debt service, etc. Paragraph 4 of the agreement provides that no rent shall be charged to the Town for use of the Ossining Community Center. This creates an opportunity cost that may or may not represent a loss to the Town and/or Village. Paragraph 5 provides that any losses above insurance coverage shall be apportioned to each entity by their respective share of the recreation program, which could create a conflict if the loss was the result of the action or inaction of only one of the parties to the agreement, and may or may not conflict with “hold harmless” clauses found elsewhere in the agreement.

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The inventory attached to the agreement as an appendix is dated December 9, 1992 and paragraph 2 of the agreement indicates that upon termination of the agreement such inventory “…shall be returned to the Town in repaired or replaced condition…”. The agreement should be updated to reflect whether or not the Village will be required to replace such items, and if so, an updated inventory should be provided to ensure that the items on the original inventory still exist or have been replaced. Many items on the 1992 inventory list are old and may be obsolete. For instance, the list includes a “Procomm Floppy Drive” with a cost value of $266 and an “IBM Proprinter” with a cost value of $661. “Floppy” refers to a form of computer recording media that was subsequently replaced by compact disc (CD) in the mid to late 1990’s. The IBM Proprinter was a dot-matrix printer produced by IBM in the late 1980’s.

The second paragraph of the Memorandum of Understanding (“MOU”) dated December 9, 1992 and attached to the agreement references Veteran’s Park, and may conflict with the 1998 Veterans Park intermunicipal agreement concerning the operations of Village programs. The same MOU references certain individuals who may or may no longer work for the Village or the Town.

Operational

The Village’s Superintendent of Recreation administers a multi-generational recreation program for all Ossining residents. All residents of the Village and Town of Ossining can participate in recreation programs at the same cost (excluding pool and swim programs) provided they obtain a recreation ID card. Recreation IDs cost $2.00 for Village residents and $4.00 for Town residents. According to Westchester County Department of Human Resources, the General Statement of Duties for Recreation Superintendent is summarized as follows: Administers, plans, organizes, promotes, develops and coordinates the programs, functions, facilities and parks of a public recreation agency. Does related work as required. Under the general direction of the local Recreation Commission or the local governing body or official, the incumbent in this position is responsible for performing important professional and administrative work in the field of recreation, as the administrative head of a recreation department. This position includes the responsibility for planning, organizing, promoting, implementing and directing recreation and/or park programs suitable to the needs and interests of the community and the planning for and utilization of desirable facilities. Administrative activity focuses on coordination of the work of professional and non-professional personnel and coordination of other community resources for the implementation of services. Where the program is limited, the Superintendent of Recreation may be expected to spend a large percentage of time directing particular programs and activities. This position involves the supervision of large numbers of professional, nonprofessional and seasonal staff.

It is readily apparent that the current Superintendent of Recreation performs all of the requisite duties and tasks in accordance with Civil Service and with the terms of the Recreation IMA.

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Programs are listed in semi-annual brochures entitled “GREATER OSSINING RECREATION & PARKS ACTIVITIES”. The brochure is mailed carrier pre-sort to “Residential Customer”.

The Superintendent also supervises the Town parks maintenance division of the Town of Ossining and administers its budget. The agreement is silent with respect to these functions, and no costs attributed to the same are charged to the Town.

Sometime after the offices were integrated, the equipment on inventory that belonged to the Town became obsolete and unusable. There is no record of any salvage value obtained or of the actual disposition of this equipment.

The Town pays the Village in accordance with an outdated formula stated in the Agreement.

The agreement is silent as to when payment for services is due (monthly, annually, etc).

The original agreement did not provide for adjustments for annual costs or inflation.

The formula failed to account for the fact that in subsequent years there would not be a Town recreation budget plug into the formula. As written, the Town payment to the Village should have been the same for 1993, 1994, 1995 and 1996.

During the term of the agreement and beyond, no rent has been charged to the Town for use of the Ossining Community Center. A Town-wide Senior Nutrition Program is housed at the Ossining Community Center.

The Town appropriates its payments to the Village for these services in its Town General Fund (10-7310-475) resulting in Village residents subsidizing a portion of this payment.

The cost to the Town in subsequent contract years has been calculated using an agreed upon CPI index. The original formula gave the Town a proportionate credit for all program revenues received. Subsequent charges to the Town need to be examined to determine if revenues are still being apportioned and offsetting some of the costs shared by the Town.

Related to this comment, it is noteworthy that the agreement is silent with respect to each party’s role in establishing program fees and charges.

The agreement is silent with respect to the role of the Village and Town’s parks/recreation advisory board (PRAB). Both the Town and Village appoint members to this Board and both have a Board liaison that sits with PRAB.

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The agreement also fails to recognize the authority of the Village Manager with respect to this position. The Superintendent is appointed by the Village Manager and therefore is accountable to the Village Manager. The agreement is also silent with respect to shared parks maintenance equipment. The Superintendent advised that equipment is routinely shared between parks maintenance crews.

As a service contract, this IMA does not involve a true merger of recreation services. There is no integrated approach by which the Town and Village perform strategic planning for the future of recreation.

Finally, the IMA is silent with respect to the retention of or contracting with third party recreation providers (such as the Ossining Sailing Club or Ossining Boat and Canoe Club).

If the parties agree that the Superintendent is best positioned to supervise the Town’s park maintenance staff and administer the parks department budget, there should be formal acknowledgment of this in the IMA.

Future revisions should include a mechanism for dispute resolution.

The costs to the Town should be calculated using more relevant factors such as population served or program costs per capita.

Although beyond the scope of this IMA, it would be prudent to recommend that the Village and Town enter into an IMA for equipment sharing that adequately protects both parties on each end of these “handshake” agreements.

Since the Village at-large is subsidizing the Town’s recreation payment, the Village may wish to impose a nominal surcharge on program registrants that live outside the Village, or raise the fee for ID cards for non-Village residents.

The Village and Town should approve all third party agreements and obtain the appropriate insurance coverage and certificates.

The IMA should mention and define the role of the Parks and Recreation advisory board, if in fact the Recreation Superintendent reports to and meets with this body in lieu of the Town Board and Village Board.

The tasks of evaluating the inventory of programs and related fees, reviewing staffing issues, evaluating parks, facilities and related infrastructure, garnering community feedback, and providing services to multi-generational users are typically assigned to parks and recreation advisory boards. The Ossinings should review the mission statement of the advisory board and determine if such tasks are appropriate to include.

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Areas of Future Cooperation

If the Village and Town Board desire a more direct role in the administration of

recreation and parks, they should consider the creation of a joint recreation commission (refer to GML Art.13).

Partnering to develop and implement a Recreation and Parks Master Plan is another alternative available to the Town and Village.

The parties can also mutually benefit by collaborating on the use of fees obtained in lieu of parklands and on grant opportunities that arise to further the goals of both communities.

9. Veteran’s Park Legal

This agreement provides for the Town to conduct and operate the recreation facilities and provides recreation services to Town and Village residents at the Village owned “Veteran’s Park”. The Town, at its sole cost and expense shall maintain park grounds, structures and all equipment. The Village retains the exclusive use and remains responsible for the repair, operation (including electric bills) and maintenance of its park department garage and designated parking spaces.

Capital improvements must be approved by both parties and shall be shared as

follows: 70% Village, 30% Town. The Town shall permit the Village to use the Park for Village programs or events provided such use does not conflict with any use previously schedule by the Town. The Town pays electric utility charges, except for those charges related to the Village’s garage. The Village removes snow, ice and garbage. Village Police patrol the park and enforce park rules. The Villages closes and secures the park each night. The agreement contains reciprocal insurance and hold harmless provisions.

This agreement was entered into in May, 1998 for a term ending December 31,

1998. It is subject to annual renewals, unless notice not to renew is given by one of the parties, on the same terms and conditions as the preceding year, subject only to a revision of financial figures. The Village is given the unilateral option to terminate the agreement at any time by giving the Town reasonable notice (not otherwise defined). In the event of such a termination the Village shall assume and continue all current recreation programs being conducted by the Town until their completion and shall purchase from the Town, all equipment, structures and improvements by the Town purchased and installed by the Town at actual cost minus normal depreciation.

No compensation is provided in the Agreement for the services to be rendered by

the Town. If the intent of the parties is that these services are to be provided at the cost

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of the Town, the Agreement should so state.25 Indeed, the only financial figures mentioned in the agreement are the seventy percent (70%) [Village] – thirty percent (30%) [Town] split in capital expenditures. Any change in such allocation formula, as any amendments to the agreement, would require approval by both legislative bodies.

A detailed analysis of this agreement is contained in the financial section of this report and will not be duplicated here. In addition to the concerns expressed in that section regarding paragraph 10, that paragraph could be construed as an impermissible attempt to bind future legislative bodies insofar as it appears to obligate the Village Board to adopt legislation relating to the use and enjoyment of Veteran’s Park as may be recommended by the Town. Except for the reference in Paragraph 7, one could not determine that the Village owns Veteran’s Park. When this agreement is revised, the WHEREAS clauses should state, among other things, that the Village owns the Park, and should articulate the rationale for the Village’s desire to contract out the operation of the Park to the Town. Given that the Recreation Functions Agreement provides for the Village to administer the Recreation Program for the Town and the Village, why doesn’t that responsibility also extend to recreation services at Veteran’s Park, a Village owned Park, rather than the Town assuming such responsibility. While the agreement divides up financial responsibility for capital improvements, it is silent as to whether such improvements shall be financed by the issuance of indebtedness and, if so, who will issue such indebtedness. Nor is there a procedure where the parties can resolve a dispute over the necessity for capital improvements. Similarly, although the Town is responsible for repairs and maintenance, the agreement contains no obligation for the Town to prepare and submit to the Village for approval an annual budget for such purposes.

Financial This agreement provides that the cost of operating and maintaining Veteran’s

Park is shared by the Town and the Village. More specifically:

The Town controls and pays for the operations and maintenance of recreational facilities in the park, except that the Village pays for the operation and maintenance of a garage and six parking spaces adjacent to that garage.

                                                            25 Similarly, paragraphs 8 and 9 of the agreement, which address the Village’s obligations for garbage removal and snow removal, should also include language that these responsibilities are to be undertaken at the sole cost and expense of the Village.

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The Village is responsible for the removal of snow and ice from roadways and parking.

The Village is responsible for the removal of garbage and refuse.

Capital expenditures are shared 70% Village/ 30% Town.

The agreement is silent as to why the operations and maintenance is shared as indicated. It is also silent as to the basis for the 70/30 split of Village/Town share for capital expenditures, and as to what action, if any, is to be taken should both parties not agree to a capital expenditure. While the agreement references operation and maintenance of park facilities, it should clarify whether or not that includes park grounds (lawns, trees, walkpaths, etc.). Paragraph 10 of the agreement indicates that the Village agrees to adopt amendments or rules promulgated by the Town, which may conflict with law or other sections of the agreement. Further, paragraph 10 is silent as to who is responsible for costs or lost revenues associated with implementing changes in rules or regulations promulgated by the Town, whether or not they are acceptable to the Village. Paragraph 12 is silent as to which entity is responsible for maintaining a list of equipment, structures, and improvements installed or purchased by the Town, and while it requires that on termination the Village should purchase from the Town such assets “…at a price equal to actual cost…less normal depreciation” it does not specify what method of depreciation (straight line, declining balance, etc.) is to be used, or if salvage value is to be considered in calculating depreciation. While not a financial issue, paragraph 13 appears to have a typographical error in stating that “The Village and Town agree to sue their best efforts…” rather than “…use their best efforts…”.

The agreement should include the basis for the allocation of operating, maintenance, and capital costs associated with the park. While it is beyond the scope of this study, each entity should evaluate the full cost (direct and indirect) of its commitment to the operations and maintenance of Veteran’s Park to ensure that the costs are being divided equitably. An inventory of all capital items should be maintained and updated annually, including depreciation, so as to facilitate transfer of property in the event that the agreement is terminated and not replaced with another sharing arrangement. Finally, consideration should be given to incorporating this agreement into the Recreation Functions Agreement to eliminate conflicts and ensure proper administrative oversight.

Operational The Town of Ossining does not conduct or operate recreational facilities at

Veteran’s Park. The Village of Ossining’s recreation department, under the auspices of the Superintendent of Recreation, coordinates all programs, organized activities, terms and conditions of park use and its facilities.

The Town’s current role is limited to parks maintenance (fields, furnishings, facilities). Therefore the conditions numbered two (2) “Operation of the Park” and five

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(5) “Village Use of Park” and twelve (12) Termination By Village as written in the IMA are not operational or applicable.

Condition number seven (7) “Designation as a Village/Town Park” requiring an entrance sign stating the park is owned by the Village and operated by the Town, while never erected, would be a misrepresentation of current practice. Curiously, Veteran’s Park is listed as a Town Park on Town of Ossining’s website.

In accordance with the IMA, the Village keeps roadways clear of snow and ice, removes park trash, and closes the park at night. Village police patrol the park.

There is a method of cost sharing identified for capital improvements, but the term is not defined. There are no provisions for sharing or applying for any grant money obtained for the park that could be used to upgrade the facilities at Veteran’s Park.

The agreement is silent as to the Village’s expectations and does not hold the Town parks department to any measurable parks maintenance standards. The Town does not represent that it has the ability or the resources to properly maintain this park. The IMA also fails to hold or designate anyone officially responsible for the oversight of parks maintenance. Graffiti is prevalent throughout the park, and the basketball courts are in need of resurfacing.

Although the Village collects the trash receptacles, there was no evidence of recycling or containers to encourage recycling at the Park.

The Village has the authority to establish rules for the use of the park. However no park use rules were posted. There are advisory speed limit signs and an area where parking is regulated after 9PM.

Regarding utilities, the Agreement states that the Town will pay for park lights. There are no provisions for utilization of lights for field use at night or park fees related to use of the park or the lights. Nor is there any mention of which party can charge or collect user fees.

While condition number 6 “Utilities” is operable, costs attributed to use of the park are programmatic expenses attributed to the Greater Ossining Recreation Program and therefore should be distributed pursuant to the Recreation IMA.

If fees are collected for the use of field lights, the Agreement should acknowledge this. Similarly, if the park uses municipal water, charges for the cost of water should be addressed.

The IMA should contain a definition of a “capital improvement.” For example, language to the effect that states the refurbishment or replacement of any park facility, fixture or furnishing that costs in excess of $100,000 would constitute a capital improvement. Also, there is no designation of a person responsible for preparing or

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determining capital improvement needs at this park. The parties should agree on which party to the agreement is responsible to make such recommendations. The IMA should identify the person responsible for supervising the Town’s parks department performance under the IMA.

The parties should agree on how grant funds, if obtained, would be used and credited toward capital contributions.

The IMA should contain a preamble that addresses the representations each party is making to, or expecting from, the other under the agreement.

The Village and Town should collaborate on the adoption of uniform park rules and regulations for all parks under their respective jurisdictions.

The Village and Town should once again explore the feasibility of combining or sharing parks department personnel under the direction and control of one or the other. A phased in process can overcome impediments such as union representation and seniority issues. Current practice suggests that, at a minimum, an agreement to share equipment can be accomplished more readily. These issues can be examined as part of a joint Parks and Recreation Master Plan undertaking previously recommended. 10. Municipal Dumpsters

Legal We have been provided with an unsigned Renewal Notice and Agreement for

2006 pertaining to the Village of Ossining Municipal Dumpster Program. By its terms, the agreement covered the calendar year 2006. Reference is made to an “original agreement” a signed copy of which has not been provided. There are references in the renewal notice agreement for 2006 to the “duty of the party of the second part” but that party is not identified. The annual fee for 2006 Dumpster Services was set at a $1080 per dumpster to be billed in quarterly installments of $270.00. Paragraphs 2, 3 and 4 provide for the maintenance of dumpsters and dumpster areas but does not expressly state whose responsibility that is.

Other than a reference in paragraph 5 to compliance with source separation and storage of refuse and recycling materials, the agreement makes no mention of Village Code Chapter 225 regulating solid waste and the obligation to comply with the provisions of that chapter. The relationship between Chapter 225 and the agreement should be clarified. A literal reading of the contract renewal and acceptance clause would have allowed a recipient of dumpster service to receive services in January but not pay for them if the Agreement was cancelled prior to February 1.

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Financial In this agreement, the Town pays the Village annually for the provision of

dumpsters, including the regular removal of refuse disposed in the dumpsters.

The Municipal Dumpster Agreement provides that the Town will pay the Village $270 quarterly (a rate of $1,080 annually) per dumpster. There is no indication in the agreement as to how the parties arrived at the agreed price per dumpster. The agreement does not state the size of the dumpsters (15 cubic yard, 30 cubic yard, etc.) to be provided, nor is there any provision to change pricing in the event of unanticipated and significant changes in volatile cost components such as employee benefits, fuel or dumping (“tipping”) fees.

A discussion with Village officials revealed that the Village operates 372 dumpsters having a capacity of 1.5 cubic yards each26. Seventeen (17) of these dumpsters are located at the Hudson View Condominiums, and in accordance with the Dumpster IMA, 44% of the cost of these dumpsters (7.48 dumpsters) is to be charged to the Town. The 44% allocation represents the approximate Town to Village taxable assessed valuation split of the Hudson View Condominiums property. Village officials advised that the 2008 charge to the Town is $310 per dumpster per quarter ($1,240 per year).

Page 58 of the Village of Ossining 2008 Adopted Budget (functional unit 8161 – Refuse Collection - Dumpsters) provides for most of the costs of the Village’s dumpster program. However, other costs, such as employee benefits, insurance, and debt service should be added to these costs to arrive at the estimated full cost of the program. The full cost of the program can then be divided by the total cubic yards of the Village’s dumpsters to arrive at the cost per cubic yard, and then multiply the cost per cubic yard by the total cubic yards of the dumpsters provided to the Town to arrive at an appropriate per dumpster charge. A rudimentary estimate of the 2008 cost per dumpster including the total amount budgeted on page 58 of the 2008 Adopted Budget, adding 56% of personal services found on that page for estimated employee benefits, and 2.29% of this total for unallocated insurance, divided by 372 dumpsters would bring us to an approximate per dumpster annual cost of $1,266 per year in 2008, not too far different from the $1,240 per year current charge. As noted, the $1,266 per year is rudimentary at best and does not include general and administrative overhead. Also as noted before, some of the cost components can change abruptly and significantly in either direction (higher or lower), a factor that should be considered in structure of the IMA.

Some of the costs associated with refuse removal and disposal, such as fuel, insurance, and tipping fees, can be quite volatile. The agreement should contain an

                                                            26 Telephone interview on April 8, 2008 with David Stone, Director of DPW for the Village of Ossining.

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escalation clause that would adjust pricing in the event of a significant increase in such costs.

Operational

A formal IMA between the parties could not be located. According to David Stone, an unsigned document entitled Village of Ossining Municipal Dumpster Agreement sets forth the terms and conditions of service, identifying the Village of Ossining as the “PARTY OF THE FIRST PART” and the customer as “PARTY OF THE SECOND PART”. A site visit confirmed that there are 17 dumpsters at the Hudson View Condominium complex. Of this number, nine (9) are exclusively for trash and eight (8) are exclusively for recyclables. The March 2008 quarterly invoices generated for services at Hudson View are based on a total of seventeen (17) dumpsters that serve the entire residential complex. The quarterly price per dumpster is $310. The total quarterly billing was $5,270 (17@ $310). Of this amount, $2,320 is prorated to the Town of Ossining, representing 44% of the balance due. This equates to 7.48 dumpster units charged to the Town of Ossining. Trash is picked up twice a week and recyclables once per week. A “dummy” invoice is created for the services rendered but that invoice is not sent to the HOA. The Town is then billed quarterly by the Village. The amount the Town pays per dumpster is the same amount charged to Village property owners that contract for this service. There are no surcharges or premiums charged to the Town for this service.

A new IMA needs to be constructed that defines and sets forth in part:

Terms and conditions of service The collection schedule Pricing and Payment terms Contact information Insurance Requirements Renewal and Cancellation Provisions

The Town should confirm that the number of units within Hudson View that are

paying Town Outside property taxes (and are therefore subject to this Agreement) represents 44% of all units in the development.

The Village pays a tipping fee for trash ($25.00 per ton) but does not pay a tipping fee for recyclables (it does however pay a monthly use fee of $606.77 for tipping recyclables at the Roa Hook facility). There should be consideration for a differential (reduced) charge to the Town for tipping its recyclables.

The Town has a contract with a commercial carter (SANI-PRO) for residential collection services throughout the Town. The Town should request, as an “add

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alternate” in its future bids, a quote to pick up the dumpsters at Hudson View Condominiums. The means and methods of collection, as well as the days and hours of pickup should be identical to those performed by the Village of Ossining for this complex. Renewal and Cancellation provisions in the IMA should be constructed in a manner that allows the Town to renew or opt out of its contract with the Village in a timely manner. This will ensure that the Village’s annual dumpster fee can be properly set.

The Village should be authorized to bill the HVC association directly for these services if there are no legal impediments to doing so. This would avoid some duplication of efforts and the advancement of public funds for the benefit of individuals.

11. GO-TV

Legal This agreement between the Town and Village and the Greater Ossining

Television Inc., (“GO-TV”) pertains to GO-TV’s establishment and operation of a cable television station for public, educational and governmental access. The undated agreement was for a term expiring on March 1, 1999. The agreement provides that it will ”self renew for a period of two (2) years unless either party gives, at least ten (10) days before this agreement expires, written notice of its intent not to renew and desire to renegotiate this agreement.” It is unclear whether this language contemplated a single two year renewal option or successive two year renewal options. If the former, the written agreement has expired.

The quoted language from paragraph 1, to the extent it provides for termination

for convenience, may be inconsistent with the language in paragraph 2 that provides for termination for cause limited specifically to six contingencies. It is also noted that this latter paragraph provides, to be operative, both the Town and Village must agree to terminate. We would not recommend that either municipality’s right to terminate the contract for cause be conditioned upon the acquiescence of the other municipality. No such linkage appears with respect to the decision not to renew as provided in paragraph 1. Nor, as discussed later, does any such linkage appear in the agreement between the Town, Village, GO-TV and the School District covering the same subject matter.

Paragraph 7 of the agreement obligates GO-TV to cablecast all meetings of the

boards of the municipalities and the school district. However, no provision is made for live telecasting of those meetings. Also, the language of the agreement is ambiguous as to whether GO-TV is obligated to televise planning board and zoning board meetings, as well as Town and Village Board Meetings.

Noticeably absent from this agreement is any reference to any of the policies that

will govern GO-TV’s operation including, but not limited to public access to facilities, equipment, training, channel space and program content and scheduling. Nor is there any reference to the role to be played by the Town’s Cable TV Advisory Committee

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which was established inter alia, to serve as an advisory body for the public, educational and municipal access channels of cable television. Town Code § 70-25.

This agreement refers to another intermunicipal between the Town, Village, GO-

TV and the Ossining Free School District. That agreement dated 1998 was for a ten (10) year term and expired on June 30, 2007. No provision for renewal is contained in that Agreement. However, appended to that agreement is a one page Extension Agreement extending the term from January 1, 2008 to March 31, 2008. It is unclear what happened to the term July 1, 2007 to December 31, 2007. In any event, this latest extension has also expired.

We recommend that the two expired agreements be merged into a single multi-

party agreement setting forth the duties and obligations of the parties in a single instrument. Resolutions of the governmental entities authorizing the execution of such an agreement should be appended together with a corporate acknowledgment on behalf of GO-TV.

Financial In this agreement, the Town and Village agree to remit to Greater Ossining

Television, Inc. (“GO-TV”) some or all of the cable television franchise proceeds received by the municipalities. In return, GO-TV would “…establish, operate, and maintain” a cable television production facility for municipal channel cable television. There is a separate but related intermunicipal agreement among the Town, Village, and Ossining Union Free School District (“School”) wherein the School provides for studio space.

In essence this agreement sets forth a financial contract between two parties: the municipalities (Town and Village), and GO-TV. The main financial issues concerning this agreement involve 1) whether or not the amounts remitted to GO-TV reflect an appropriate price for value and 2) what impact the School’s participation has, if any, on this agreement.

While it is beyond the scope of this study, the municipalities should perform a more complete analysis of the value of services rendered by GO-TV to ensure that the price for value of GO-TV’s services is appropriate. An audit of services rendered to date should also be performed to ensure that past service from GO-TV has been in accordance with the agreement.

The inventory of equipment and other items acquired or purchased under this agreement should be obtained, and the agreement should be amended to indicate what, if any, obligation exists on the part of GO-TV to return or replace inventoried items upon termination of the contract. Further, the agreement should specify the ownership, or part thereof, of any equipment or item acquired or purchased under the agreement if such equipment or item was not provided from one of the three municipal entities (Town, Village, or School).

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Consideration should be given to incorporating this agreement with the “Cable

TV IMA” among the Town, Village and School. Operational

There is another agreement between the Town, Village, GO-TV and the Ossining

Union Free School District that is controlling should a dispute arise under this agreement. It is “deemed part of this agreement” but not appended.

There is no evidence of recent compliance with several provisions of the agreement, specifically:

Submission of financial reports Provision of current insurance certificates Maintenance of an inventory list Annual operations reports Segregated programming (public access programming

has been aired on the government channel)

GO-TV has been required to air meetings of the municipalities and the school district upon request, but was “not required to produce such programming”.

The agreement does not provide the municipalities or school district any priority when scheduling studio use.

Shows were to be aired at least two times in a thirty-day cycle.

As required by the agreement, both the Village and Town submit the PEG fees received by Cablevision to GO-TV.

The referenced “Cable IMA” should be attached to the IMA, since it pertains to terms and conditions for development and use of the studio, operating hours, and insurance provisions.

For the consideration given by the municipalities and district to GO-TV (financial support, equipment, and studio space), the municipalities should require that GO-TV air and produce programming for the municipalities and the district.

At a minimum, the Town, Village and School District should have priority over any commercial or fee based programming activities undertaken by GO-TV.”

The Town and Village may wish to elaborate on the definition of “meetings” to include the meetings of other municipal boards and commissions. An agreed upon fee or quid pro quo to produce the municipalities’ programming should be included in this agreement.

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The thirty day window in which at least two (2) airings of a municipal meeting will

occur can cause airings to be more than three and half weeks old. The municipalities should require airings within a reasonable timeframe (say within 48 hours after taping) that run at fixed times on fixed days. For example, the Village holds Board meetings on Tuesday evenings. These meetings may be aired on Thursdays at 10AM, 3PM and 7PM and again on Sundays at the same time.

Outline For Future Intermunicipal Agreements

In addition to the specific comments on the eleven (11) IMA’s reviewed in this

study, we recommend that future IMA’s entered into by the Town and the Village contain the following provisions:

WHEREAS clauses describing the type of service to be performed, detailing the rationale for entering into the agreement and citing the statutory authority for the agreement and the independent authority of each participant to do the action or perform the service which is the subject of the agreement

Definition section for key terms Description of the scope of services and establishment of performance

standards Contract term, amendments, termination and provisions for automatic

renewal Liability of the parties Allocation of personnel Compensation and/or allocation of revenues and expenses (operational

and capital) and a formula for the adjustment of same during the life of the agreement

Care, custody and control of the property Insurance and indemnification Record keeping and reporting Entire agreement – document contains the entire agreement and may not

be changed, modified or altered in any way absent a written agreement of the parties

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Assignment, transfer or subletting of the agreement without prior written consent is prohibited

Dispute resolution Agreement governed by New York law Waiver – waiver by either party by a breach of any provision of the

agreement by the other party will not operate or be construed as a subsequent breach by either party

Non Discrimination Provisions Certificates of Authority or Municipal Acknowledgements where

appropriate executed by all signatories of the agreement Provision for notices under the agreement identifying to whom notice shall

be given and the address to which the notice shall be sent Severability Clause Attachment of Resolutions authorizing the execution of the contract by

each participant

Additional Areas of Future Cooperation

Both elected and appointed officials of the Town and Village of Ossining have expressed an interest in expanding on existing IMAs and in identifying new areas for cooperation. The preceding operational analysis offers suggestions to expand the scope of various agreements or simply “clean up” ambiguous language and modernize them.

Insofar as the Town and Village desire to explore new areas for cooperation, the

“unanimity of purpose” for such undertakings must be embraced by both elected boards and clearly communicated to their respective constituents and employees. All IMAs must pass scrutiny in four areas: (1) mutual benefits and costs, (2) local government capacity needs and resources, (3) leadership, teamwork and cooperation, and (4) legal and institutional barriers (nyslocalgov.org).

There are numerous examples throughout the State of New York of successful cooperation agreements. A clearinghouse for this information can be found at www.nyslocalgov.org.

More readily supported and easily achievable IMAs have involved the following:  

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Purchasing agreements for vehicles, fuels and supplies Sharing equipment Investment pools and banking services Comprehensive plan initiatives Building and Code enforcement activities Retained consulting services (auditing, planning, engineering) Employee training (PESH and related workplace requirements)

EPA, DOH and other mandates

IMAs that result in more permanent transfers or outsourcing of services are much more difficult to perfect in politicized and unionized environments. However, they often result in substantial and measurable cost savings. If efficiencies and quality of service are not compromised, they are worth exploring. Some of the more popular consolidation agreements involved the following:

Justice Courts Police Services Public Works and Sanitation (Privatized or municipal) Annexation or Boundary Changes Formation of Special Districts (Fire, Ambulance) Formation of Joint Authorities or Commissions (Water, Recreation)

In summary, the elected officials of both communities should carefully consider

the recommendations outlined in this report, discuss the merits of implementing them with key personnel, and decide on a direction to pursue for the future.